



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Luu, 2021 ONCA 311

DATE: 20210512

DOCKET:
    C66161

Fairburn
    A.C.J.O., Trotter and Coroza JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Van
    Phuc Luu

Appellant

Mindy Caterina, for the appellant

Moray Welch and Surinder Aujla, for the
    respondent

Heard: October 29, 2020 by
    video conference

On appeal from the conviction entered on
    August 13, 2018, and the sentence imposed on October 23, 2018, by Justice
    Stephen J. Hunter of the Ontario Court of Justice.

Coroza J.A.:

OVERVIEW

[1]

After a trial in the Ontario Court of Justice,
    the appellant was convicted of conspiracy to traffic in a controlled substance,
    trafficking in methamphetamine, and possession of the proceeds of crime
    exceeding $5,000.

[2]

The appellant was one of the targets of a
    lengthy Ontario Provincial Police (OPP) drug trafficking investigation. On
    May 11, 2015, the OPP saw the appellant and Kristopher Jerome complete a drug
    deal in a carpool lot in Port Hope, Ontario. The two men were arrested
    following an exchange of bags. The police seized 523 grams of
    methamphetamine from one bag in Jeromes car and $12,240 from another bag in
    the appellants car. Two phones belonging to Jerome were also seized. These
    phones were searched, and the police seized text conversations between the
    appellant and Jerome suggesting that the appellant was Jeromes drug supplier.
    Some of the conversations referenced Jeromes offer to sell the appellant a
    firearm. Other conversations referenced a variety of drugs, including fentanyl.

[3]

The appellant brought a pre-trial application
    seeking the exclusion of evidence based on alleged violations of his rights
    under ss. 8, 9, and 10 of the
Canadian Charter of Rights and Freedoms
.
    The trial judge dismissed the application. As a result of the trial judges
    ruling, the appellant conceded that he was in possession of the proceeds of
    crime but argued that the Crown could not prove the conspiracy and trafficking
    charges beyond a reasonable doubt.

[4]

The Crown relied on a report tendered by a
    police officer who analyzed the text messages exchanged between the appellant
    and Jerome. The Crown argued that the text messages revealed that the appellant
    was supplying Jerome with methamphetamine so that Jerome could sell the drug in
    the Napanee area.

[5]

The appellant testified that he was not a drug
    dealer and that on May 11, 2015 he met Jerome to purchase a pistol
    from him. He testified that the true owner of the car he was driving asked him
    to exchange bags with Jerome. He had no knowledge of the drugs found in
    Jeromes car. The trial judge rejected the appellants evidence, stating that
    it was fraught with inconsistencies and that it bordered on fantasy. He
    convicted the appellant of conspiracy to traffic in a controlled substance,
    trafficking in methamphetamine, and possession of proceeds of crime over $5,000.
    The appellant was sentenced to a global sentence of six years and six months
    incarceration. The appellant appeals his convictions and sentence.

THE GROUNDS OF APPEAL

[6]

On the conviction appeal, the appellant argues
    that the trial judge erred in dismissing his s. 10(b) claim. The appellant
    submits that the police did not fulfill their duty to ensure he understood his
    right to counsel. He also claims the trial judges reasons for dismissing his
    s. 10(b) claim were confusing and insufficient. Additionally, and for the first
    time on appeal, the appellant raises an argument that the police failed to
    implement his right to counsel without delay, since he did not speak to duty
    counsel for more than seven hours after his arrest.

[7]

The appellant claims that if this court finds
    that his s. 10(b) rights were breached, we should perform the required analysis
    under s. 24(2) of the
Charter
. He argues that we should exclude the
    money seized from the appellants car and the observational evidence of the
    officers who watched the exchange between the appellant and Jerome on May 11,
    2015. He seeks an acquittal on the proceeds count and a new trial on the drug
    charges.

[8]

As to sentence, the appellant contends that in
    his reasons for sentence, the trial judge improperly considered factors that
    were irrelevant and not aggravating. The appellant argues that the sentence
    imposed should be set aside and replaced by a global sentence of four and
    one-half years to five years incarceration. In support of that submission,
    the appellant asks this court to admit and consider fresh evidence.

[9]

For the following reasons, I would dismiss the
    conviction appeal. While I would grant the appellant leave to appeal sentence and
    admit the fresh evidence, I would also dismiss the sentence appeal.

SUMMARY OF THE FACTS

[10]

Beginning in January of 2015, the OPP began an
    investigation into Kristopher Jerome and Travis Dennisboth known drug dealers
    in the Napanee area. The investigation revealed that the appellant was
    supplying Jerome drugs, and specifically methamphetamine from Toronto.
    Surveillance revealed that the appellant met Jerome on February 26 and May 7,
    2015. He was driving a car registered to a Randolph Lynch.

[11]

On May 11, 2015, the police saw the appellant
    and Jerome meeting in a carpool lot in Port Hope, Ontario. It was raining
    heavily. The police saw Jerome get out of his car and enter the appellants
    car. After spending some time in the appellants car, Jerome returned to his
    car carrying an orange bag. The police believed that a transaction was taking
    place and arrested both men. The orange bag in Jeromes car contained
    methamphetamine. A bag in the appellants car contained $12,240.

[12]

During his arrest, Cst. Price of the OPP read
    the appellant his rights to counsel and caution. The rights were read outside
    in the heavy rain. Cst. Price initially informed the appellant that he was
    under arrest for drug trafficking and asked him to spell his name. According to
    Cst. Price, the appellant spelled his name out in English and provided him with
    a date of birth. Cst. Price then read the appellant his right to counsel from a
    card and asked him if he understood. The appellant replied yes in English.
    When he was asked if he wanted to speak to a lawyer, the appellant replied, I
    dont know.

[13]

Cst. Price decided that, because of this
    response and the fact that the appellant spoke with an accent, he should
    explain the rights to the appellant in simple English. He explained each of the
    points on the card. According to Cst. Price, the appellant confirmed that
    he understood because he made eye contact and nodded. He also confirmed that he
    understood English when he was asked by Cst. Price. According to Cst. Price,
    the appellant confirmed a second time that he understood his right to counsel.
    When asked a second time if he wanted to speak to a lawyer, the appellant again
    replied, I dont know.

[14]

After reading the appellant his rights and
    caution, Cst. Price then turned him over to the Port Hope Police Service. Cst.
    Price believed that he told the officers that the appellant had not specified a
    lawyer that he wanted to talk to, and that they may wish to follow up with the
    appellant about providing him with duty counsel or a lawyer of his choice.

[15]

The appellant testified during the
voir dire
that he believed that Cst. Price was speaking English, but that he could
    only hear parts of what Cst. Price was saying. He testified that he nodded at
    Cst. Price because it was cold, raining, and he wanted to get to a warmer place,
    not because he understood what Cst. Price was saying. He also testified
    that he spoke to duty counsel during the early morning hours without the
    assistance of an interpreter and did not understand duty counsels advice.

DISCUSSION

(1)

Issue 1: Did the Trial Judge Err in Dismissing
    the s. 10(b) Application?

[16]

In his ruling dismissing the appellants
Charter
application, the trial judge found that Cst. Price was direct and careful about
    the rights that he communicated to the appellant. He noted that Cst. Price
    recognized that there may have been some difficulty in communicating with the
    appellant and that, as a result, the officer decided to repeat the rights to
    counsel in simple language. He noted that the appellant acknowledged that his
    rights had been read twice and that he told Cst. Price that he understood
    his rights twice. The trial judge then went on to find that:

There was nothing that was articulated by Mr.
    Luu to the Officer Constable Price at the time the rights to counsel and
    caution and arrest were described to him that would lead Detective Constable
    Price to believe that there was any difficulty in the understanding capacity of
    Mr. Luu.

[17]

The trial judge concluded:

He did, of course, indicate problems with
    understanding the English language but its quite clear throughout that he did
    not communicate that to anyone. If, in fact, the Crown went further, after he
    spoke to duty counsel to suggest that it was appropriate to take a statement
    from him in the absence of the interpreter I would agree with [counsel for the
    appellant] that certainly that may be questionable. But they did not. They made
    sure that Mr. Luu had communication with duty counsel and went no further
    in terms of attempting to obtain, nor did they obtain, any further evidence
    from him by way of statement or otherwise after the takedown itself had
    occurred.

[18]

On appeal, the appellant renews his claim that
    his s. 10(b) rights were infringed. First, with respect to the informational
    component of s. 10(b), the appellant argues that the trial judge erred by
    finding that there was nothing that would have led Cst. Price to believe that
    the appellant had difficulty understanding English. The appellant points to Cst.
    Prices testimony that after he finished reading the appellant his rights, he
    turned him over to the Port Hope police and advised them that the appellant had
    not indicated he wanted to speak to a lawyer, so they may want to follow up in
    terms of providing him with access to duty counsel or a lawyer of his choice.

[19]

I see no error in the trial judges analysis and
    I would not give effect to this argument. In my view, the trial judges
    findings that Cst. Price carefully recited the appellants rights to counsel,
    and that the appellant understood his rights when they were read to him, are
    fully supported by the evidence led on the
voir dire
. The appellant
    testified on the
voir dire
and claimed he did not understand his rights.
    The trial judge was entitled to reject that claim and find that the
    informational component of s. 10(b) had not been infringed. On the trial
    judges findings, Cst. Price properly conveyed the required information
    and the appellant understood what Cst. Price told him. Those findings were
    firmly anchored in the evidence. That evidence included the following:

·

The appellant verbally confirmed he understood
    English;

·

The appellant nodded and made eye contact with
    Cst. Price when he was asked if he understood his rights;

·

The rights to counsel were read twice by Cst. Price;

·

Cst. Pricewho noticed the appellants accent
    and his response: I dont know to whether he wanted counseldecided to repeat
    the rights to counsel in simple language. The appellant confirmed he
    understood.

[20]

Nor am I persuaded that Cst. Prices comments to
    the Port Hope police suggested that he had difficulty understanding the
    appellant. I view Cst. Prices comments as a direction to the Port Hope police
    that the appellant had not invoked the right to counsel.

[21]

Second, the appellant claims that the trial
    judges reasons were confusing and insufficient. The appellant argues that the
    trial judge appears to have held that it would have been questionable if the
    Crown argued that it was appropriate, after the appellant spoke to duty
    counsel, for the police to take a statement from him in the absence of an
    interpreter. The appellant states that the reasons can be interpreted to mean
    that the trial judge found that the police would have infringed the appellants
    s. 10(b) right by taking a statement, and that such a finding necessarily means
    the trial judge concluded that the appellant
did
assert his s. 10(b)
    right. The appellant points to this alleged inconsistency, among others, to
    argue that the reasons give rise to conflicting theories as to why the trial
    judge decided the application in the way that he did, representing an error of
    law.

[22]

I do not agree with these submissions. My view
    of the issue is that the trial judge was addressing a very cursory submission
    on this point made by defence counsel. These comments did not factor into the
    courts reasoning process in relation to whether s. 10(b) had been violated. On
    the trial judges findings, the appellant understood English and was not under
    any misapprehension of what was being said to him about his rights.

[23]

Third, the appellant argues the police failed to
    discharge their implementational duties under s. 10(b), because the appellant did
    not receive access to duty counsel until more than seven hours after his
    arrest. With respect, it is not appropriate for this court to address this
    argument. It was not advanced in the court below and there is a lack of
    evidence as to what occurred after the appellant was turned over to the Port
    Hope police. Even if it were proper for this court to entertain this argument
    for the first time on appeal, the appellant faces an uphill climb, as there is
    no evidence on this record that the appellant expressed a wish to exercise his
    rights to counsel that would trigger the polices implementational obligations:
    see
R. v. Fuller
, 2012 ONCA 565, 295 O.A.C. 309, at para. 17.

[24]

In light of my conclusion that the trial judge
    did not err in dismissing the s. 10(b) application, it is not necessary to
    address the appellants s. 24(2) arguments. The appeal against conviction is
    dismissed.

(2)

Issue 2: Did the Trial Judge Err by Considering
    Irrelevant or Unproven Aggravating Factors?

[25]

On the sentence appeal, the appellant takes
    issue with some of the trial judges findings.

[26]

First, he contends that the trial judge erred in
    finding that he had a higher involvement in the drug distribution hierarchy
    than Jerome or Dennis. I do not accept this argument. There was overwhelming
    evidence that the appellant was higher in the drug chain than Jerome and Dennis.
    The appellant was responsible for transporting drugs and supplying Jerome with
    drugs in the Napanee area. It stands to reason that he was one of Jeromes main
    suppliers and, without the appellant, Jerome could not traffic drugs in
    Napanee. Furthermore, the evidence indicated that Jerome and Dennis were
    similarly situated in the drug distribution hierarchy. Accordingly, I see no
    basis to interfere with the trial judges common sense finding.

[27]

Second, the appellant argues that the trial
    judge erred in his treatment of text messages between the appellant and Jerome
    in which they converse about the potential transfer of fentanyl and firearms.
    The trial judge held that this was an aggravating factor. The appellant submits
    that this was an error because there was no evidence that the transfers ever materialized.

[28]

I recognize that the trial judge provided
    cursory reasons as to why the open discussions of fentanyl and firearms were an
    aggravating factor in the circumstances of this case. However, after carefully
    considering the evidence that was before him, I conclude that it was open to the
    trial judge to reason that these discussions were relevant as an aggravating
    factor.

[29]

There was no dispute that the text messages referencing
    fentanyl and firearms were admissible at trial and sentencing. Generally, the text
    messages revealed that the appellant was involved in a conspiracy to traffic
    different drugs, including large amounts of methamphetamine. In text messages
    dated February 7, 2015, Jerome and the appellant discussed purchasing
    fentanyl patches for $5,000 to $10,000. In text messages dated approximately
    January 25-27, March 12, April 28, and April 30, 2015, Jerome and the appellant
    also discussed the sale of a gun to the appellant. In these messages, the
    appellant requested pictures of a firearm and the pair discussed prices between
    $2,500 and $3,000. In a message dated April 30, 2015, the appellant specifically
    requested a .40 calibre firearm.

[30]

I do not agree that these discussions were irrelevant
    in determining a fit sentence for the appellant. Facts tending to establish the
    commission of other offences of which an accused has not been charged or convicted
    can be admitted to enable a court to determine a just and appropriate sentence:
    s. 725(1)(c) of the
Criminal Code
, R.S.C., 1985, c. C-46;
R. v.
    Angelillo
, 2006 SCC 55, [2006] 2 S.C.R. 728, at paras. 22-27; and
R.
    v. Edwards
(2001), 155 C.C.C. (3d) 473, (Ont. C.A.), at paras. 63-65. The
    text messages revealed that the appellant was a drug trafficker operating at a
    high level. He was also interested in purchasing a firearm from his
    co-conspirator. This evidence was relevant to show the appellants background
    and the seriousness of the criminal conspiracy in which he entered. It is true
    that the appellant was specifically charged with a conspiracy to traffic in
    methamphetamine. However, I read the trial judges reasons as stating that,
    since the appellant was also prepared to participate in fentanyl trafficking and
    to purchase a gun from his co-conspirator, this conspiracy was one that involved
    serious criminality. It was open to the trial judge to find that this was an aggravating
    factor.

[31]

There was no objection by defence counsel to the
    admission of these text messages. Indeed, the appellant gave evidence of his
    drug dealing activities and his interest in purchasing firearms when he
    testified on his own behalf at trial. He sought to use this evidence in an
    exculpatory way. As this court observed in
R. v. Chanmany
,
    2016 ONCA 576, 338 C.C.C. (3d) 578, at para. 54, leave to appeal refused,
    [2017] S.C.C.A. No. 88, it ill lies in [the appellants] mouth now to deny the
    relevance of the evidence he himself adduced to his character for the purpose
    of sentencing.

[32]

Nor do I accept the appellants argument that, since
    there was no evidence that the discussions of firearms and fentanyl ever materialized,
    they should not have been considered by the trial judge. There is one simple answer
    to the appellants submission: the appellant and Jerome were arrested, putting
    an end to their conspiracy. A review of the text messages reveals that the discussions
    about fentanyl and the firearm were not just idle talk. The appellant and
    Jerome contemplated the transfer of fentanyl and firearms as part of their
    conspiracy. They discussed specifics, including the price of fentanyl, the price
    of a firearm, obtaining a photo of a firearm, and acquiring a particular type
    of firearm. The text messages do not suggest that the appellant withdrew or
    abandoned his interest in fentanyl or the pursuit of the firearm prior to the
    date of arrest. Accordingly, it was open to the trial judge to give weight to
    the magnitude of the crime contemplated by the conspirators agreement:
R.
    v. Russo

et al.
(1998), 130 C.C.C. (3d) 339 (Ont. C.A.), at paras.
    12-16.

[33]

Finally, the appellant seeks leave to introduce
    fresh evidence, consisting of three letters from the appellants family. The
    documents provide this court with an update on the appellants behaviour while
    on bail pending appeal. The appellant has been assisting his family members
    with their financial and living expenses and has clearly taken positive strides
    to improve his life. The Crown does not oppose the introduction of this
    evidence.

[34]

The appellants rehabilitative strides are
    encouraging. However, the seriousness of the appellants crimes cannot be understated.
    He was involved in a serious conspiracy that escalated the trafficking of
    methamphetamine in the Napanee area, over a period of months. The fresh
    evidence does not provide a basis for this court to interfere with the sentence,
    which was fit when it was imposed.
[1]


DISPOSITION

[35]

I would dismiss the appeal from conviction. I
    would also admit the fresh evidence and grant leave to appeal sentence, but would
    dismiss the appeal from sentence.

Released: May 12, 2021 J.M.F.

S.
    Coroza J.A.

I
    agree. Fairburn A.C.J.O.

I
    agree. Gary Trotter J.A.





[1]
The
    sentence imposed here falls within the loose range of five to eight years
    incarceration identified
by Durno J. in
R. v. Hien and Ly,
(10
    February 2016), Brampton, 450/14 (Ont. S.C.). In
Hien and Ly
, the
    offenders received custodial sentences of four and one-half years, and four
    years and three months, respectively, for the offence of possessing one
    kilogram of methamphetamine for the purpose of trafficking. The trial judge
    relied on this decision in concluding that six and one-half years imprisonment
    was the appropriate sentence.


