Opening comments: More at the end.
You really need to red all the red to see how bad, bad can be & then the media articles that note nothing every happens to Peel's criminal cops or Blackshirts.
The source is from - http://www3.quicklaw.com/cgi-bin/LNC-prod/lnetdoc.pl?DOCNO=249
To other related media articles
Finally the most important detail !!!!!
A of evil Peel police did them in !!!!
That - "would compromise a major drug bust and catch a police officer lying, under oath, on the witness stand."
A fact that was not noted in the Judges Decision & most media reports!
R. v. Dinh
Between
Her Majesty the Queen,
and
Tan-Hung Dinh and Phuoc Nguyen, Defendants
[2012] O.J. No. 643
2011 ONSC 1016
Court File No. CRIM 380/10
Ontario Superior Court of Justice
D.F. Baltman J.
Heard: January 9, 2012.
Judgment: February 10, 2012.
(36 paras.)
S. Aujla for the Crown.
Leora Shemesh for Mr. Dinh.
G. Tsimiklis for Mr. Nguyen.
REASONS FOR SENTENCE
DEENA F. BALTMAN J.:—
Overview
1 Mr. Dinh has pled guilty to trafficking nearly a kilo of cocaine. He was charged after an undercover operation in which the police arranged to purchase cocaine from him at a motel. Shortly after his arrest at the motel police found nearly a kilo of cocaine in his car; in all subsequent search of his home they located another two kilos of cocaine along with an ecstasy pill press, over 2,000 grams of ecstasy, and other drug related materials.
2 On June 24, 2011, following a Charter application based on alleged breaches of s. 7, 8 and 10(b), I ruled that all the evidence seized from Mr. Dinh's home was excluded, as a result of an unlawful search by the police and their subsequent false testimony on that issue in court. I further ruled that because the police had also assaulted Mr. Dinh in the Motel room, the associated breaches of ss. 7 and 10(b) could be addressed by way of a reduced sentence, should there be a conviction. My reasons for that ruling were delivered on September 27, 2011 (R. v. Dinh, 2011 ONSC 5644), and should be read in conjunction with these reasons in order to fully appreciate the highly unusual facts of this case. Given today's proceedings, the publication ban on those reasons is removed.
3 Defence counsel subsequently advised she wished to bring a further s.8 challenge with respect to the drugs found in the offender's vehicle at the motel. The motion was scheduled to proceed yesterday; however following various discussions the matter resolved in a guilty plea, followed by submissions on sentence. This is my decision on sentence.
The Facts
4 In early September 2009 members of Peel Regional police arrested Billy Mai for trafficking in heroin. On the cell phone seized from Mr. Mai police found text messages from a party who identified himself as "Hung3". In the text Hung3, using coded language, offered to sell a kilo of cocaine to Mr. Mai.
5 Police responded to the message in an undercover capacity, pretending to be Mr. Mai, and over the next few days arranged to purchase 1/4 kilo of cocaine. The deal was set up to take place on September 9th at 3:00 p.m. in Room 111 at the Super 5 Motel in Mississauga. Police arranged surveillance accordingly.
6 At approximately 3:35 p.m. on September 9th a white Acura arrived in the parking lot of the motel. Mr. Dinh was driving and Mr. Nguyen, the co-accused, was the passenger. Mr. Dinh walked to Room 111 and knocked on the door, expecting to find a buyer for his cocaine; instead he was hauled into the room by several police officers, and arrested.
7 Despite offering no resistance Mr. Dinh was beaten and injured by one or more of the police officers involved in the arrest. Although his injuries were never life-threatening, he sustained significant bruises and numerous cuts. He was then interrogated in the motel room for 45 minutes without being provided his rights to counsel. Police made no attempt to audio or video record his initial statement, even though they were within a 10 minute drive of the police station.
8 Police then transported him to 21 Division. Both en route and upon arrival, his request for medical assistance was ignored.
9 Meanwhile police had searched the Acura, and located a cell phone connected to the same phone number used by Mr. Dinh (posing as Hung3). They also found 847 grams of cocaine, which included the 1/4 kilo that Mr. Dinh had arranged to sell that day at the motel.
10 A team of officers then headed over to Mr. Dinh's residence. In my reasons on the Charter application, I described in detail how without any justification police then thoroughly searched the house before the warrant was issued, and their subsequent false testimony before me in court about those events. In sum:
* Despite having cleared and secured the home, police remained inside for the next several hours, allegedly awaiting the search warrant;
* However, during that interval, and at least five hours before the search warrant was issued, police conducted an extensive and illegal search of the house;
* The drugs which the police claimed they found after the search warrant was issued were clearly found by them beforehand;
* They then came to court and lied about what happened and when.
11 At the conclusion of the voir dire, I declined the defence application for a stay, but ruled that:
(a) All the evidence seized from the home would be excluded under s. 24(2), as it was most closely associated with the reprehensible police conduct during the search and their subsequent false testimony on that issue;
(b) The drugs seized from the car were admissible; the associated breaches under ss. 7 and 10(b) could be addressed in a reduced sentence, should there be a conviction.
Circumstances of the Offender
12 Mr. Dinh is 28 years old. He was born in Vietnam and arrived in Canada in 1986, along with his parents and brother. His parents subsequently divorced and Mr. Dinh now lives with his mother, brother and sister-in-law. They are a close knit family and his mother in particular has been very supportive of him throughout these proceedings. He does not have any relationship with his father.
13 Mr. Dinh completed high school and then attended and completed a three year course at Centennial College in automotive technology. While in College he worked as an automotive technician at Tai Gon Auto, and upon graduation remained there on a full-time basis. Including his time in College Mr. Dinh worked at Tai Gon for ten years, uninterrupted; seven months ago, again without interruption, he relocated to a Land Rover/Jaguar auto shop, where he is currently employed full-time as an auto technician.
14 Mr. Dinh has no criminal record. Since his initial release (two days after the arrest) he has been under house arrest, with provisions that are fairly strict but permit his ongoing employment. There have been no violations of his bail conditions.
15 Why did an educated young man with good employment, a supportive family and no drug or alcohol addiction get involved in such a serious offence as drug trafficking? Through his counsel Mr. Dinh states he got drawn into a drug subculture as a way of making fast and easy money, to help pay the household bills and support his family. He now admits this was a very foolish and misguided decision, and deeply regrets his behaviour.
Positions of Crown and Defence:
16 The Crown seeks a custodial sentence of two years, or two years less a day. The Defence asks for a conditional sentence of two years less a day, consisting of six months of house arrest and 18 months curfew.
In reply the Crown stipulates that if I am inclined to grant a conditional sentence of two years less a day, the entire period should be under house arrest.
Principles of Sentencing
17 Section 718 of the Criminal Code sets out the following objectives of sentence:
1. To denounce unlawful conduct;
2. To deter the offender and other persons from committing the offences;
3. To separate offenders from society, where necessary;
4. To assist in rehabilitating offenders;
5. To provide reparations for harm done to victims or the community; and
6. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to the victim and to the community.
18 In my view all of the above objectives play a role in determining a just sentence in this case. I have also considered other relevant sentencing provisions in the Code. Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2(d) states that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Subsection (e) provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. These two provisions reflect the principle of restraint in the use of incarceration and that, within reason, it should be seen as a last resort.
The Legal Framework:
19 Trafficking is a very serious offence, and typically calls for a sentence that will carry significant deterrence and denunciation. For that reason, it is undisputed that the normal range for those convicted of trafficking approximately a pound of cocaine is 5 to 8 years: R. v. Bajada, [2003] O.J. No. 721 (C.A.); R. v. Bertucci (2002), 169 C.C.C.(3d) 453 (O.C.A.); R. v. Bryan, 2011 ONCA 273 (C.A.).
20 But "ranges" are just that: merely a guideline for the judge in imposing a just sentence that fairly reflects the relevant circumstances of both the offence and the offender. As our Court of Appeal noted recently in R. v. Wright, [2006] O.J. No. 4870, at para. 16:
[Ranges] are nothing more than guidelines and are certainly not conclusive of the appropriate sentence in any given case. Each sentencing must be conducted as an individualized exercise.
This point was underscored by Moldaver J.A. in R. v. D.(D.), [full citation omitted] at para. 33:
Before going any further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible.
On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases ...
21 In R. v. Nasogaluak, [2010] S.C.R. 206, the Supreme Court observed that sentencing judges can order a sentence outside the general range set by case law, as long as it is in accordance with the principles and objectives of sentencing and does not override any clear legislative directive such as a statutory minimum sentence. In particular, a sentencing judge may consider police violence or other misconduct when formulating a fit and proportionate sentence. Such conduct may, in extraordinary cases, constitute a sufficient mitigating factor to justify deviating from the normal range for a particular offence. (paras 48-55).
22 The Court noted that "the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence." (para. 48). It explained that this is consistent with the communicative function of sentencing, because a proper sentence not only reflects the offender's behaviour but also expresses society's shared values. Those values include "ensuring that law enforcement agents respect the rule of law". (para. 49). Consequently, police misconduct may be a relevant mitigating factor warranting a reduced sentence, even without resort to s. 24(1) of the Charter. (para. 55).
Aggravating and Mitigating Factors
23 Other than the very serious nature of this offence, there are no aggravating features to this case.
24 There are, on the other hand, numerous mitigating factors, some fairly typical but others unique and highly compelling. The first category, involving features more commonly seen in sentencing decisions, includes the following:
(a) The offender has pled guilty. This not only shows an acceptance of responsibility but will, in this case, eliminate at least two further days of Charter motions and a two week trial.
While this plea was not made early in the proceedings, the offender has from the outset admitted that he owned the cocaine and was attempting to sell some of it when arrested;
his challenge to these proceedings was based on alleged violations of his Charter rights, acts which I have since found to be numerous and egregious.
(b) Favourable personal circumstances. The offender is relatively young and has been gainfully and steadily employed for over ten years. He has a supportive and stable family, with whom he resides.
(c) Absence of Criminal Record. Not only is this his sole offence, but in the 2.5 years since this arrest he has been fully compliant with his bail conditions.
25 The second group of mitigating features in this case are both unique and compelling, particularly when viewed cumulatively. They flow from the serious police misconduct involved, and in my view fall within the "extraordinary" behaviour contemplated by the Supreme Court in Nasogaluak. In particular:
(a) The police assaulted Mr. Dinh in the motel room, even though he was fully compliant and unresisting during the arrest. They inflicted numerous injuries upon him and then ignored his request for medical help.
Shortly after his release Mr. Dinh visited his family doctor, who documented several bruises and cuts arising from the assault.
(b) Immediately after the arrest, police proceeded to interrogate him for nearly an hour in the motel room, without first providing rights to counsel;
(c) After they secured his home, police not only remained inside but proceeded to conduct an extensive and illegal search of the house, several hours before the search warrant was issued;
(d) At the subsequent voir dire the police gave false evidence designed to mislead the court, even after being confronted with reliable evidence to the contrary.
Analysis
26 Accepting that the usual range is five to eight years for this offence, it is clear that this case is anything but usual. Indeed, the mitigating features are so exceptional that even the Crown agrees the range should be no higher than two years, or two years less a day. The real dispute is whether a conditional sentence is appropriate.
27 In arriving at this point, I recognize that courts must be cautious in after-the-fact assessments of police behaviour. Out on the street police face a myriad of circumstances, many of which may be violent or sudden, leaving little time to exercise perfect judgment. Some leeway must be provided for the exercise of their discretion in difficult or fluid circumstances. As the Supreme Court noted in R. v. Cornell, [2010] S.C.J. No. 31, at para. 24:
The role of the reviewing court in assessing the manner in which a search has been conducted is to appropriately balance the rights of suspects with the requirements of safe and effective law enforcement,
not to become a Monday morning quarterback.
28 But this was not a case where police simply over-reacted in an urgent or dangerous situation. Their safety was never in issue, as Mr. Dinh was unarmed and did not resist the arrest. He was not a flight risk, and there was ample time to give him his rights before questioning him. Moreover, there were no exigent circumstances that required the police to search his house before the warrant was issued. Finally, it was many months later when, at the voir dire, the police lied under oath in order to cover up the illegal search, and persisted in that lie when confronted with the most damning of evidence. All these misdeeds were calculated, deliberate and utterly avoidable.
29 In sum, from their initial arrest of Mr. Dinh until their ultimate testimony in court, the police showed contempt not just for the basic rights of every accused but for the sanctity of a courtroom. Misbehaviour of this nature, particularly when committed by police officers, strikes at the heart of the administration of justice. It undermines society's confidence both in the police - who above all should uphold the law - and in the courts, where more than anywhere truth should prevail.
30 Moreover, it is particularly unfair to the majority of police officers who follow the law, both inside and outside of the courtroom. They deserve society's approval and recognition, and should not be tainted by the cynical view that can result from the behaviour seen in this case.
31 Section 742.1 sets out four criteria a court must consider before deciding whether to impose a conditional sentence: (1) the offence must be one that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental principles of sentencing.
32 The first two criteria are easily met in this case. The offence of trafficking is not punishable by a minimum term of imprisonment, and the Crown has agreed that in the unique circumstances of this case the Court could impose a sentence of two years less a day.
33 The next question is whether serving the sentence in the community would endanger its safety. According to the Supreme Court of Canada's leading decision of R. v. Proulx, (2000) 140 C.C.C. (3d) 449, two factors must be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. Although a recurrence of this offence would be highly damaging to society, in this case I consider the risk of Mr. Dinh re-offending to be low. He has no criminal record before this incident, and has not re-offended any time during the approximately 2.5 years that followed this charge, while subject to a restrictive bail order. On balance, I am satisfied that if the offender were bound by an appropriate conditional sentence, the community would not be endangered by his serving the sentence in the community.
34 The final question is whether a conditional sentence would be consistent with the fundamental principles of sentencing. Mr. Dinh is still fairly young. He has a stable job and family. This is his first offence and he appears both chastened by this experience and motivated not to repeat it. In these circumstances, I believe the principles of denunciation and deterrence are satisfied without incarceration, provided reasonable conditions are attached.
35 Given all these factors, I find a fit sentence in this case to be a conditional sentence of two years less a day. During that period, in addition to the statutory conditions set out in section 742.3 (1), Mr. Dinh shall reside with his mother, at her current address. For the first 12 months he shall be under house arrest, and may leave the residence solely to travel directly to or from employment, attend an educational program approved by his conditional sentence supervisor, for medical emergencies or scheduled medical appointments, or to shop for necessities between 2 p.m. and 4 p.m on Sunday. During the second 12 months those restrictions shall be lifted except that Mr. Dinh must remain at home between 9 p.m. and 6 a.m.
36 An order shall issue pursuant to s. 487 of the Code for the taking of a DNA sample, along with a weapons prohibition pursuant to s. 109(2)(a) and (b) of the Code.
D.F. BALTMAN J.
cp/s/ln/qlacx
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