R. v. Le, 2015 ONCJ 154

Citation: R. v. Le , 2015 ONCJ 154 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) J. Mitschele ) for the Crown ) — AND — ) ) VAN TUAN LE ) P.

Locke ) for the defendant ) ) ) ) lipson J.: REASONS FOR SENTENCE [ 1 ] Van Tuan Le pleaded guilty to charges of produce methamphetamine, possession of methamphetamine for the purpose of trafficking and possession of chemicals knowing they will be used to manufacture methamphetamine, all contrary to the Controlled Drugs and Substances Act . [ 2 ] Agreed Statement of Facts “I n July of 2012, RCMP investigators rece i ved informat i on from a Confidential Informant that an Asian male known as "Dang" was p r oducing Methamphetamine in large quantities .

As a r esult o f the i nformatio n provided, RCMP i nvestigators were able to ident i fy "Dang" as Van Dang DUONG, residing a t 67 Turnva l e Road i n E t obicoke . Furthermore, the investigation also identi f ied Van T u an LE of 70 Foxrun Ave n ue, Toronto, Ontario as a close associa t e of D U ONG. Throughout the course o f the invest i gation t he investigators conducte d s u rvei l lance on DUONG and LE and se i zed discarded ga r bage fr om their r espective res i dences .

Invest i gators ana l yzed the ga r bage seized from 70 Foxrun Ave, the residence of Van T u an LE and discovered p apers with l ists for l arge amounts of C l a r it i n and Reactine, which are over the coun t e r medica ti on that contain t he precursor pseudoe ph edrine, which is a k ey i ngred i ent used in the production of Me t ha m phetam i ne. On Apri l 1 1 , 2013, inves t igato r s ob t ained the garbage f rom 67 Tu r nva l e Road, which h ad been set out at the curbs i de of th e s t reet f or co l lection. Inves t iga t ors the n searc h ed t hrough the ga r bage and f ound t h e fo l l owing items: a.

A sma l l "ca m ping - s t y l e" disposable propane ta n k b. A c l ea r p l astic bag conta i ning a crumpled - u p piece of fabric ins i de, with an o ff - w h ite powde r residue with i n t he fabr i c. c. Mu l tip l e s tr ips of l i t m u s paper. d. Multip l e pieces of fabric t hat are sim il ar to the fabr i c l isted in (

b) above, bu t n ot conta in ing vis i b l e residue Investigators brought a sample of the off-white residue taken from the fabric, to Health Canada to determine the nature of the substance. On April 12, 2013, Health Canada called the RCMP by telephone advising the off-white powder taken from the garbage at 67 Turnvale Road was analyzed and found to be methamphetamine. As a result, a telewarrant to search was prepared and granted for 67 Turnvale Road in Etobicoke, and executed in the early morning of April 13, 2013. At this location, investigators found evidence of an active methamphetamine production lab.

Chemical reactions were actively taking place converting the contents into methamphetamine. The quantity of methamphetamine produced is not yet determined. Van Dang Duong, his girlfriend Be Thi Tran, stepdaughter Kieu Thi Tran and stepson Tony Quang Tuan Tran were arrested at the scene and transported to the RCMP Toronto West Detachment. On April 13, 2013, investigators conducted surveillance at 70 Foxrun Avenue, Toronto concurrent with the execution of the warrant at 67 Turnvale Road. At 70 Foxrun Avenue investigators observed a silver Infiniti bearing Ontario licence plate BDMF 083 parked in the driveway.

The vehicle had reversed up the driveway to the residence and investigators saw what appeared to be items being placed in the back and trunk of the vehicle before the vehicle left the residence.

Investigators believed that the items loaded into the vehicle were evidence relating to this investigation. At approximately 3:45p.m. a vehicle stop was conducted by the investigating officers who arrested Van Tuan Le and his son William Le, who were both in the vehicle, for production of a controlled substance and conspiracy to produce a controlled substance.

A search of the vehicle incidental to arrest revealed several boxes full of Reactine and Claritin pills totaling 42,000 pills in addition to several large clear bags containing approximately 9 kilograms of fine white powder that tested as Pseudoephedrine in the back seat and trunk of the vehicle. Also found in the back seat of the vehicle was a Tupperware type container that contained a clear crystalline substance which tested as 984 grams of crystal methamphetamine with a purity of 100%. The Tupperware container was subsequently found to possess a fingerprint of Van Tuan Le.

The Tupperware container was in a brown box that was addressed to William Le. Van Tuan Le and his son William Le were arrested and informed of their charges in the vehicle and transported to the RCMP Toronto West Detachment where they were held pending a bail hearing. Although the precursors are still being analyzed by Health Canada to come up with an estimate of the total yield, it is agreed between the parties that the 9 kilograms of pseudoephedrine and the 42,000 allergy pills located in the back of the vehicle would have produced at least 6 kilograms of methamphetamine.

It is further agreed that Van Tuan Le possessed the 9 kilograms of pseudoephedrine and the 42,000 allergy pills for the purpose of producing methamphetamine. The estimated value of methamphetamine is as follows: • $15,000 - $18,000 per pound = $33,000 - $39,600 per kilogram • Wholesale value at the kilogram level - 7 kilograms would sell for between $213,000 - $277,200 • At the gram level 7,000 grams - (7 kilograms) would sell for between $700,000 - $1,050,000 [ 3 ] Mr. Le is 56 years old. He has no prior criminal record. He grew up in South Viet Nam and served in the army.

In his early twenties, he escaped his homeland and spent 4 years in an Indonesian refugee camp before immigrating to Canada in 1986. He is divorced and the father of two adult children. He has employment at a nail salon. [ 4 ] Crown and defence both agree that in view of the seriousness of the case and the relevant sentencing objectives, a significant penitentiary sentence is required. The Crown is seeking a sentence of 7-8 years.

The defence submits that a more appropriate sentence is one of 4 years. [ 5 ] This sentence must reflect the aggravating and mitigating circumstances relating the offence and the offender. [ 6 ] As the Crown submits, the extremely high volume of methamphetamine is a significant aggravating factor. Mr. Le was in possession of approximately 1 kg of pure methamphetamine as well as precursors capable of producing at least 6 kg of methamphetamine. The wholesale value of 7 kgs. is estimated to be in the $213,000 to $277,000 and of course much higher if sold by the gram on the street.

The agreed facts indicate that 7 kgs of methamphetamine would sell for between $700,000 to $1, 050,000. Mr. Le was an important member of a sophisticated high level drug trafficking operation. [ 7 ] There are also significant mitigating factors. Mr. Le has waived his right to a preliminary inquiry and trial. He has entered an early guilty plea and is very remorseful. He spent 5 weeks in pre-trial custody. [ 8 ] There is no dispute that methamphetamine is a highly dangerous drug that poses significant risk to the health of individuals and the safety of the community.

Judges in several sentencing cases submitted by counsel accepted expert evidence indicating that methamphetamine is highly addictive and that its use involves physical risks such as cardiovascular and brain damage. There is no medication to treat an addiction to methamphetamine and behavioural therapy has limited efficacy. The amendments to the Controlled Drugs and Substances Act in 2005 moved methamphetamine from

Schedule III to

Schedule I and equated the penalties associated with methamphetamine offences to those involving cocaine. [ 9 ] The sentence to be imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. There can be no question that the offences committed by Mr. Le are very serious and his degree of moral blameworthiness high. The paramount sentencing objectives in a case such as this are denunciation of Mr. Le`s conduct and deterrence of anyone else who might be tempted to engage in the production and trafficking of methamphetamine. [ 10 ] The following

summary of sentences imposed for trafficking or possession of methamphetamine for the purpose of trafficking was submitted by counsel: Offence (

s) Quantity Plea Record Circumstances Sentence R. v. Oraha 2012 ONSC 1439 Poss. Purpose 3 kg Not guilty None Offender was a high- level commercial trafficker of methamphetamine, cocaine and MDMA Offender sentenced to 7 years for methamphetamine offence [1]

R. v. Liu2009 ONCJ265 Trafficking Poss Purpose 33.5grams > 1kg. total Guilty None Mid-level trafficker inCanada on a studentvisa and faceddeportation Offender sentenced to6 years R. v.Nguyen June 5,2008 (Ont .C.J.)[unreported] Poss Purpose11oz. totalGuilty Yes, priordrug entry (3mosconditionalsentence) Offender possessed 9oz and then a further2 oz while on bail. Offender sentenced toequivalent of 6 years R. v.Villanueva2007 ONCJ87 1. Traff. 2. PossPurpose 3. Proceeds 4.

Traff (heldout) 1. 6oz 2. 1kg 3. $9000 4. 2 ½ Kg Guilty None Offender had beeninvolved in the crystalmeth trade for sometime and motivated byprofit. Offender sentenced toequivalent of 5 ½years. R.v. Loy2011 ONCA340 Poss Purpose1 kg Notguilty None Offender had goodprospects forrehabilitation. Hadchild with her whilepossessing the drug. Appeal againstsentence of 5 years.Dismissed. R. v.Johnson[2008] A.J.No. 686(C.A.) 4 ½ ozs(119g) Yes, related Offender involved infairly high-levelcommercialtrafficking. Sentence reduced onappeal to equivalentof 4 years. R. v.Copeland (ONSC), [2007]O.J.

No.3390 (Sup.Ct.) Poss Purpose9.9 ozs(280g) Guilty Yes, non-drug. Noprior lengthyincarceration. Low-level traffickerwho trafficked forprofit. Offender sentenced to3 years. (jointsubmission) [11] In R. v Wu [2014] O.J. 4846 the accused was a 44 year old who had a record for possession of marijuana for the purpose oftrafficking and was on parole at the time of the offence. He was convicted of possession of MDMA, ketamine and methamphetamine forthe purpose of trafficking. The street value of the drugs was between $763,000 (if the product was bought in bulk) and $12 million (ifsold individually on the street).

The accused was given a global sentence of 8 years less credit for pretrial custody for 17 months ofpretrial custody. [12] In R. v. Zhang [2014] O.J. 2497, the 51 year-old accused was found guilty of production of MDMA, possession ofmethamphetamine and MDMA for the purpose of trafficking. He was involved in an illicit pill pressing operation that was a large scalecommercial enterprise. The maximum street value of the drugs seized was $2,100,000. The accused stored materials in his home, helpedset up the lab in a commercial building and obtained chemicals used in production.

He had a previous trafficking conviction. He receiveda global sentence of 7 ½ years less credit for pretrial custody and restrictive house arrest conditions. [13] A review of these sentencing cases leads me to conclude that the lowest end of the range for an offender such as Mr. Lewho has no prior record and entered early guilty pleas would be in the 6-7 year range. In order to address the primary sentencingobjectives of denunciation and deterrence, a significant penitentiary sentence must be imposed in a case such as this which involves thecommercial production of a very large quantity of methamphetamine.

Taking into account the aggravating and mitigating circumstancesrelating to this offender, I am satisfied that Mr. Le should receive a sentence at the lower end of the range. The global sentence will be 6½ years less credit for time served which is five weeks to be credited at 1.5:1. The sentence remaining to be served is 6 years and 4months. There will be

section 109 weapons prohibition order for 10 years and Mr. Le shall provide a sample of his DNA to be housed inthe national DNA bank. Released: March 24, 2015 Justice T. Lipson