Ontario’s highest court has upheld the convictions of a Toronto man who trafficked drugs to the Napanee area.
Van Phuc Luu was convicted August 13, 2018 of conspiracy to traffic in a controlled substance, trafficking in methamphetamine, and possession of the proceeds of crime exceeding $5,000.
The appeal sought to replace the sentence imposed on him of six and one-half years imprisonment with a sentence of four and one-half years to five years of incarceration.
Luu’s appeal argued that the trial judge, Justice Stephen J. Hunter, erred in dismissing a pretrial claim that sought exclusion of evidence based on alleged violations of his rights under section 10b of the Canadian Charter of Rights and Freedoms. Under 10b “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” Luu’s appeal contended that the police did not fulfill their duty to ensure he understood his right to counsel.
Luu also contended that the trial judge considered factors that were irrelevant and not aggravating in his reasoning for sentence.
Luu was one of the targets of a lengthy Ontario Provincial Police (OPP) investigation in drug trafficking. At age 38, he was arrested along with another man, Kristopher Jerome (then 24), of Napanee.
On May 11, 2015, at around 10:20 p.m., OPP officers watched as Luu and Jerome completed a drug deal in a carpool in Port Hope, Ont. It was raining heavily, Jerome got out of his car and entered Luu’s vehicle. After some time, Jerome returned to his car carrying an orange bag.
The men were arrested and the police seized 523 grams of crystal methamphetamine from the orange bag in Jerome’s car, and $12,240 from another bag in Luu’s car.
Two phones belonging to Jerome were also seized. These phones were searched, and the police seized text conversations between Luu and Jerome suggesting that Luu was Jerome’s drug supplier. Some of the conversations referenced Jerome’s offer to sell Luu a firearm. Other conversations referenced a variety of drugs, including fentanyl.
The two were each charged with trafficking, two counts of possession for the purpose of trafficking, and possession of property obtained by crime over $5,000. Police then obtained a search warrant for an Ann Street residence in Napanee where they seized 26 grams of crystal meth, steroids, and more than $10,000. Stephanie Jerome, 26, also from Napanee, was also charged with possession for the purpose of trafficking, possession of property obtained by crime, and failing to comply with probation.
Const. Price of the OPP testified that, during the initial arrest, he informed Luu that he was under arrest for drug trafficking and asked him to spell his name. According to Const. Price, Luu spelled his name out in English and provided him with a date of birth. Const. Price then read Luu his right to counsel from a card and asked him if he understood. Luu replied “yes” in English. When he was asked if he wanted to speak to a lawyer, the appellant replied, “I don’t know.”
Because of this response and the fact that Luu spoke with an accent, Const. Price explained each of the rights again in simple English. This time, according to Const. Price, Luu confirmed he understood by making eye contact and nodding.
Const. Price asked Luu if he understood English, which he confirmed. According to Price, Luu confirmed a second time that he understood his right to counsel. When asked a second time if he wanted to speak to a lawyer, Luu again replied, “I don’t know.”
In the appeal of his conviction and sentence, Luu contended that because of the heavy rain, he could only hear parts of what the arresting constable was saying when he was read his rights. He went on to say that he nodded in agreement, but only because it was cold and he wanted to get to a warmer place, not because he understood what Const. Price was saying.
The Court of Appeals concluded that Const. Price properly conveyed the required information and the appellant understood what Const. Price told him. Those findings were firmly anchored in the evidence: Luu verbally confirmed he understood English, nodded and made eye contact with Const. Price when he was asked if he understood his rights twice.
The Court also found that Luu’s rehabilitative strides are encouraging, however, the seriousness of his crimes cannot be understated. For months, he was involved in a serious conspiracy that escalated the trafficking of methamphetamine in the Napanee area, the Court found.