R. v. Tran, 2014 ONCJ 506

Citation: R. v. Tran , 2014 ONCJ 506 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Ms. A. Francis ) for the Crown ) — AND — ) ) THAN HIEN TRAN Mr. P. Brauti and D. Meirovici for the applicant ) ) ) ) ) ) lipson J.: RULING ON MR. TRAN’S APPLICATION TO WITHDRAW HIS GUILTY PLEAS [ 1 ] On February 7, 2014 the applicant, Thanh Hien “Steven” Tran pled guilty to trafficking marijuana, conspiracy to traffic marijuana and possession of proceeds of crime. He was to be sentenced on July 31, 2014. Counsel for the Crown and applicant were expected to propose a joint submission that Mr.

Tran be sentenced to three years and that he forfeit certain properties. The Crown was to withdraw the remaining charges of being a member of a criminal organization, trafficking marijuana, conspiracy to launder proceeds of crime and laundering proceeds of crime. Mr. Tran now applies to the court to withdraw his guilty pleas on the basis that there has been an unanticipated material change in the evidence.

Background of the application [ 2 ] On September 14, 2010, Quoc Toan “Bryan” Lam was arrested by Peel Regional Police after being allegedly found in possession of approximately100 pounds of marijuana located in a storage locker along with $100,000 cash inside his BMW vehicle. On October 14, 2010 Peel Regional officers executed search warrants at properties associated to Bryan Lam seizing various illicit substances, cash and other items believed to be proceeds of crime.

In April 2012 the Asian Organized Crime Task Force investigated Bryan Lam and his father on additional allegations of money laundering and drug trafficking in Ontario and British Columbia. This investigation was dubbed “Project Lie See”. [ 3 ] Between April and July 2012, police obtained several warrants and orders from Justice B. Cavion including general warrants, tracking warrants and production orders. The police affiant placed significance reliance on the evidence supporting Lam’s 2010 charges to support his application for judicial authorization of these warrants and orders.

As a result of these orders, Project Lie See officers obtained further evidence against Bryan Lam, including the interception of ten packages of bulk Canadian currency totalling $1.5 million. Investigators were also made aware of additional associates of Bryan Lam, including the applicant Steven Tran. [ 4 ] On September 18, 2012 Justice G. Trotter granted a

Part VI authorization to intercept private communications of Bryan Lam and other known associates including the applicant. The information to obtain relied extensively on the evidence supporting Bryan Lam’s 2010 Peel charges as well as evidence obtained as a consequence of the orders made by Justice Cavion. [ 5 ] Through interceptions, surveillance and covert entries, police were able to move up and down the chain of distribution.

They identified Bryan Lam’s associates in the GTA and British Columbia and believed that the applicant and his father were working in partnership with Bryan in his marijuana distribution enterprise. [ 6 ] On November 6, 2012, search warrants executed on the applicant’s residence led to the discovery of over $200,000 cash. Large quantities of marijuana were also located in a storage locker rented in the name of the applicant’s father. The applicant was arrested and on November14, 2012 was released on bail. [ 7 ] The applicant retained counsel who received full disclosure from the Crown, including the

Part VI authorization and the information to obtain (ITO) in support. Counsel participated in numerous judicial pre-trials and ultimately decided not to bring a “Dawson” application to cross-examine the affiant of the ITO. Instead resolution discussions took place which led to the applicant’s guilty pleas and a proposed joint submission on sentence for three years.

At the last judicial pre-trial prior to the pleas being entered, I indicated that I was prepared to accede to the joint submission. [ 8 ] The applicant entered his guilty pleas on February 7, 2014 and, with the consent of the Crown, the sentencing hearing was adjourned to July 31, 2014 so that Mr. Tran could put his affairs in order before commencing the sentence. [ 9 ] In the interim, Bryan Lam was tried before Justice Casey Hill in the Superior Court on his 2010 Peel charges. Lam

brought a successful Charter application alleging breaches of his

section 8, 9 and 10(

b) rights. Justice Hill issued his reasons on theapplication on June 11, 2014. The court excluded the 100 pounds of marijuana and the seized currency from the evidence in Mr. Lam’strial. In his extensive ruling Justice Hill determined that the police committed “flagrant” breaches of Mr. Lam’s right to be secure againstboth unreasonable search and seizure and arbitrary detention. The court found that the officers had “deliberately circumvented” thewarrant requirement for their searches of the storage locker and Mr. Lam’s vehicle.

Justice Hill determined that the officers had engagedin a cumulative pattern of unconstitutional conduct that was aggravated by adverse findings concerning the credibility and reliability of the main officers’ testimony during the evidentiary hearing. In his s. 24(2) analysis, Justice Hill found the officers’ non-compliance withthe Charter to be serious and excluded the evidence of the seized drugs and money. [10] At the time of the applicant’s guilty pleas on February 7, 2014, Mr. Tran’s counsel knew that Mr.

Lam was contemplating aCharter application at his trial in Brampton but was not aware of the nature of the application nor its likelihood of success. Positions of the parties [11] Counsel for Mr. Tran submits that the ruling of Justice Hill concerning the 2010 Peel charges against Bryan Lam amountsto a material change of circumstances in the case against the applicant and potentially affords him a defence that was not reasonablyforeseeable at the time of his guilty pleas.

It is submitted that the orders and authorizations made by Justices Cavion and Trotterrespectively are based largely on evidence that a court has now determined to be tainted as a result of unconstitutional state conduct. Inthe result, it is submitted that the Crown’s case against Mr. Tran has been seriously undermined and the applicant now has a viabledefence to the charges against him.

It is submitted that, in these circumstances, the applicant has a valid reason for the court to permithim to withdraw his pleas and that it is in the interests of justice for this court to do so. [12] The Crown urges the court to dismiss Mr. Tran’s application because his guilty pleas are legally valid, that is, voluntary,unequivocal and informed. Counsel submits that the plea comprehension inquiry conducted by this court clearly establishes this. Mr.Tran entered his pleas with the assistance of experience counsel.

The applicant was provided with the full breadth of disclosure needed toexplore all possible defences, including potential Charter defences. It is submitted that a guilty plea and joint submission on sentenceshould not be lightly disturbed. Certainty and finality are watch words in the criminal justice system and only a “miscarriage of justice”should result in a guilty plea being struck and proceedings be recommenced. The Crown says that Mr.

Tran has now made a tactical andstrategic decision to apply to have his pleas struck despite his admission of the underlying facts only because of findings made by anothercourt in favour of a co-accused. It is submitted that Mr. Tran’s recent change of heart is not a proper basis for making an otherwise validguilty plea invalid. Applicable legal principles [13] In R. v. T. (R.)[1992] O.J. No.172 (C.A.) at paras. 10, 13-16 , the Court of Appeal described a guilty plea as follows: A guilty plea is a formal admission of guilt.

It also constitutes a waiver of both the accused’s right to require the Crown to prove its casebeyond a reasonable doubt and the related procedural safeguards, some of which are constitutionally protected. [14] The Court went on to define what constitutes a valid guilty plea: To constitute a valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that is the accused mustbe aware of the nature of the allegations made against him, the effect of his plea, and the consequences of his plea.

A voluntary plea refers to the conscious volitional decision of the accused to plead guilty for reasons which he or she regards asappropriate: R. v. Rosen, (SCC), [1980] 1 S.C.R. 961 at p. 974, 51 C.C.C. (2d) 65 at p. 75. A guilty plea entered in opencourt will be presumed to be voluntary unless the contrary is shown. [15] The Court reviewed the circumstances under which a guilty plea can be struck on appeal: An appellate court will permit the withdrawal of a guilty plea and quash the consequent conviction where there are “valid grounds” fordoing so: Adgey v.

R., (SCC), [1975] 2 S.C.R. 426 at p. 431, 13 C.C.C. (2d) 177 at pp. 189-90. No finite list of all“valid grounds” can be provided. [16] Up until the time of sentencing, a trial judge has both the discretion and jurisdiction to permit an accused to withdraw aguilty plea and to enter a new one. [17] In R. v. Jawbone (MB CA), [1998] M.J.

No. 235 (C.A.) Scott J.A. stated at para. 6: The circumstances justifying the exercise of such a discretion are not confined to circumstances where there is a suggestion ofimpropriety or error in the formal plea itself, rather “valid grounds”… for the accused being permitted to withdraw his plea should not betoo narrowly defined or rigidly applied. The essential question to be determined in each case is whether it is justified in the interests ofjustice. [18] The essential question on a motion to withdraw a guilty plea is whether the withdrawal of the guilty plea is justified in theinterests of justice.

In making such a motion an accused does not have to prove on a balance of probabilities that the new evidenceprovides a defence that will succeed, only that the evidence might provide him with a defence: see R. v Brown 2006 PESCAD 17, [2006] P.E.I.J. No 44 (C.A.) at para. 49. [19] The Court of Appeal has stated that it retains the discretion to receive fresh evidence where it is the interests of justice andto set aside a guilty plea “to avoid a miscarriage of justice”: R. v. Goloubev, 2009 ONCA 333; R. v. C.M., 2010 ONCA 690; R. v. Kumar,2011 ONCA 120. Analysis

[ 20 ] I am satisfied that the guilty pleas entered by Mr. Tran were valid in the sense that they were voluntary and unequivocal. At the time of his pleas, Mr. Tran was not aware of the weaknesses in the Crown’s case against him because Mr. Lam’s 2010 charges had yet to be tried. However, the applicant was aware of the nature of the allegations made against him, the effect of his pleas and the consequences of the plea and, therefore, he made informed pleas as defined by the authorities. [ 21 ] The plea comprehension inquiry in this case proceeded as follows: The Court: Mr. Tran, could you please stand up?

Before you enter your guilty pleas, I want to make sure that you understand what you’re doing by pleading guilty. First of all, do you understand that by pleading guilty, you are giving up your right to plead not guilty and have a trial? Mr. Tran: Yes. The Court: And are your guilty pleas voluntary, that is, of your own free will? Mr. Tran: Yes, it is.

The Court: I understand there will be a joint submission made when it comes time for your sentencing, which should be sometime in July, and I expect that you’ll be sentenced to a term of three years in the penitentiary, and that a forfeiture order on certain properties will be made as well. Do you understand that? Mr. Tran: Yes. The Court: And knowing all of that, you are content to plead guilty today? Mr. Tran: Yes. [ 22 ] The Crown then read into the record an agreed statement of facts against Mr. Tran who admitted those facts to be accurate. [ 23 ] It is also true that Mr.

Tran’s pleas were the product of lengthy resolution discussions and involved several judicial pre- trials. Experienced counsel assisted Mr. Tran throughout the process. [ 24 ] That Mr. Tran entered valid guilty pleas does not, of course, end the matter. The real issue here is whether there exists a valid reason for the court to exercise its discretion and permit Mr.

Tran to withdraw his plea and that it is in the interests of justice to permit him to do so. [ 25 ] It is not alleged that the applicant’s motive to withdraw his pleas is in any way an attempt to manipulate the process for some kind of improper purpose. This is a bona fide application based on the ground that Mr. Tran now has important new information which was not available to him at the time he pleaded guilty. Counsel did have full disclosure of the case against Mr.

Tran but I am satisfied that police notes could not have revealed what Justice Hill’s decision described to be serious and flagrant unconstitutional conduct on the part of the police in the 2010 investigation of Mr. Lam. There is no dispute that the evidence gathered in that investigation played an important

part in providing the police with the grounds to obtain not only the general warrants but also a

Part VI authorization in the subsequent investigation of Mr. Tran. It is also important to remember that Mr. Tran was not a co-accused of Mr. Lam in the trial of Mr. Lam’s 2010 charges. Mr. Tran did not have standing to challenge the search of the locker or Mr. Lam’s car. Nor, of course, was Mr. Tran privy to the instructions provided by Mr. Lam to his counsel concerning his case. It is clear from Justice Hill’s ruling that the Charter breaches were revealed during the course of the cross-examination of the Peel Regional officers. It is also noteworthy that Justice Hill accepted important aspects of Mr.

Lam’s testimony concerning the alleged breaches committed by certain police officers. Justice Hill’s comprehensive ruling is a scathing indictment of not only the investigative methods employed by the Peel Regional police in Lam’s case but also the testimony provided by some of the key investigators. As I indicated earlier, none of this was or could have been known to the applicant or his counsel.

I am satisfied that Justice Hill’s decision to exclude the evidence of the 2010 searches is new information which could seriously impact on any future challenge to the warrants and authorizations that yielded the evidence against Mr. Tran during Project Lie See. As Crown counsel candidly conceded in her argument, the case for or against the admissibility of evidence against the applicant will likely come down to the trial judge’s consideration of the s. 24(2) Charter factors. The law, however, does not require that in order to succeed in his application, Mr.

Tran must demonstrate that he is “factually innocent” of the charges or that he has a defence destined to succeed. He need only show that the evidence might provide him with a good defence. [ 26 ] I also take into account that permitting the applicant to withdraw his guilty plea would not prejudice the Crown. Mr. Tran’s co-accused in Project Lie See, including Mr. Lam, are currently awaiting trial in Superior Court. Counsel for the applicant has indicated that should the court permit Mr.

Tran to withdraw his guilty pleas, the applicant intends waive his right to a preliminary inquiry, agree to committal for trial and join his co-accused for trial on these charges. [ 27 ] The circumstances giving rise to Mr. Tran’s application are unique. None of the authorities referred to by counsel address the particular scenario found here. In T.R. the Court of Appeal observed that the list of “valid grounds” justifying a withdrawal of a guilty

plea is “not finite”. I am satisfied that Mr. Tran has demonstrated a valid reason for the court to permit him to withdraw his guilty pleas. The charges are serious and the appearance of fairness is extremely important. I therefore conclude that it is in the interests of justice to grant the application, [ 28 ] Mr. Tran is permitted to withdraw his guilty pleas. Released: September 29, 2014 Justice T. Lipson