Court File and Parties

Court File No.: St. Catharines Date: 2018-03-02 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ai Ming Bao

Before: Justice Fergus O'Donnell

Counsel:

• Mr. D. Anger for the Crown
• Ms. M. Macchia for the defendant, Ai Ming Bao

Reasons for Sentence

Released March 2, 2018

Fergus O'Donnell, J.:

Background and Conviction

[1] On 31 August, 2017, I found Ai Ming Bao guilty of possession of marijuana for the purpose of trafficking. That finding of guilt came after a trial, at which it came out that Mr. Bao had, whilst driving a van, breached a police roadblock in the Town of Lincoln. That roadblock had been set up as a result of an earlier motorcycle accident that did not involve Mr. Bao, but Mr. Bao came out from the general vicinity of the accident scene and failed to stop when directed to do so by the officer manning the roadblock. After a short pursuit, the officer found the van resting against a hydro pole, but no Mr. Bao. The police also found 169 pounds of marijuana in the van. The principal issue at trial was whether or not the Crown had proved Mr. Bao's identity as the driver of the van beyond a reasonable doubt. I found that the Crown had made out its case.

Sentencing Submissions

[2] The Crown now asks me to impose a sentence of nine to twelve months' imprisonment on Mr. Bao. Ms. Macchia asks for a ninety-day intermittent sentence.

[3] I am grateful to both counsel for the quality of their submissions. Mr. Anger approached the matter with his characteristic fairness, restraint and conciseness. No lily was gilded, nor was any proposition stretched. Ms. Macchia likewise swept through her submissions in a structured, thorough and easy to follow manner that, despite the relative brevity of her argument, left nothing unsaid for Mr. Bao that could have been said.

Trial Versus Guilty Plea

[4] There are some factors about this case that are relevant to the issue of sentence and are easily discernible. Mr. Bao was found guilty after trial, not after a guilty plea. He is not to be punished for exercising his constitutional right to a trial, but he is also not entitled to the mitigation on sentence that people who plead guilty are entitled to.

Personal Circumstances and Pre-Sentence Report

[5] Mr. Bao appears before me blessed with a favourable pre-sentence report. It shows that he turned thirty-three years old last month. He is one of four children of what he describes as a very positive marriage. He and his wife speak in similar terms of their own relationship. They have two young children and live with Mr. Bao's parents, in keeping with his cultural sense of obligation as the only son. The pre-sentence report shows that Mr. Bao has no fear of hard work: after leaving school in China after grade nine he found work in a steel foundry to help support his family and he has worked for almost a decade as a chef in Canada, nine years of that with one employer until the restaurant shut down. The pre-sentence report reflects input from Mr. Bao's wife and several of his friends and co-workers, some who have known him for several years, others who have known him for a decade. They speak uniformly of Mr. Bao as a good, kind and generous person and they likewise see this offence as out of character for him. He himself said his greatest flaw is a tendency to trust others too much. Whether that tendency in any way underlies the situation he finds himself in now, I do not know.

Criminal Record

[6] Mr. Bao has a criminal record, which is very dated. In November, 2007 he was sentenced to a twenty-month conditional sentence order and three years' probation for break and enter, possessing burglary tools and possession of marijuana. Three months later he was sentenced to twenty-five days in jail for obstructing a peace officer. Although the dates are not entirely clear on the pre-sentence report, it appears that Mr. Bao was placed on a non-reporting status around halfway through his probation order.

Role in the Offence

[7] There are also some factors about this case that are relevant to the issue of sentence but are less easily discernible. For example, the question of Mr. Bao's role is unresolved. I have found beyond a reasonable doubt that he was the driver of the van. From the evidence at trial, it would appear that he was not alone in the van. It goes without saying that there is typically a variety of actors in any marijuana production and trafficking organization, ranging from those at the top of the ladder down to the gardeners who know the least and profit the least. Suffice to say that there was no evidence before me to define Mr. Bao's role and I must give him the benefit of the doubt. All I can conclude with respect to his role is that he was driving a van that contained a "lot" of marijuana and that he knew it was there and exercised some measure of control over it.

Quantity of Marijuana

[8] Which brings me to the other relevant factor that is not particularly well defined in this case, the issue of precisely how much marijuana constituted that "lot" of marijuana in the back of the van. The evidence before me was that the marijuana weighed one-hundred-and-sixty-nine pounds. However, that weight must be qualified by two factors. To begin with, the evidence of the first officer on scene suggested that the marijuana was relatively fresh looking. One of the drug officers agreed that some of the marijuana's weight would be lost in drying, but felt unqualified to say what percentage of the weight would be lost that way. Judicial experience would suggest that the drying process can result in harvested marijuana losing about three-quarters of its weight.

[9] It is also unclear how much usable marijuana there would have been even after the seized marijuana had dried fully. Sergeant Sills described the marijuana as trimmed but not fully processed, one stage away from marketable end product. However, he was not asked what percentage of the total marijuana seized would be lost in moving from the state it was in to its marketable state.

[10] I note that no detailed or appropriately qualified evidence was called on either issue at trial (Mr. Anger was not the prosecutor at trial), so the Crown is left making sentencing submissions in a drug case in which the Crown cannot refer to a reliable quantity of marijuana. Mr. Anger, to his credit, did not belabour that point; to the contrary, he highlighted it. In the vernacular, it is what it is. As a result, however, I can at best say confidently that the van Mr. Bao was driving contained a "lot" of marijuana. That could have translated to forty pounds of marketable marijuana. Perhaps less. Or more. I cannot be satisfied of any precise amount beyond a reasonable doubt, which is the standard required for any aggravating fact on sentencing. "A lot" is about as precise as one can get.

Sentencing Jurisprudence

[11] Sentencing is more art than science. Unlike arithmetic, sentencing deliberations do not lead to a single, "correct" answer, just (one hopes) to a sentence that is within the appropriate range in light of all of the factors specific to the offender and the offence (although sentence deliberations can lead to an incorrect answer, i.e. one that is outside the range, even taking into account all factors specific to the case). I was referred to various cases by Mr. Anger and Ms. Macchia. For example, Mr. Anger referred to the Court of Appeal's endorsement in R. v. Hoang, 2013 ONCA 430, where the court rejected Mr. Hoang's request that a sentence of nine months in jail be converted to a conditional sentence of equal length for twenty-six pounds of "raw marijuana" (which is itself an imprecise term insofar as it does not disclose whether the marijuana was just bud or included other parts of the plant). That decision does not help much because it focuses specifically on the issue of a conditional sentence versus a sentence of real jail, the actual length of the sentence not being in dispute before the Court of Appeal. The Hoang decision is also unhelpful as a barometer because it cites Mr. Hoang's "antecedents" as one of the principal drivers of sentence in that case, without defining what those antecedents were. All we know about Mr. Hoang is that he had twenty-six pounds of marijuana in his car; we know nothing about his role. It is inherent in the nature of an appellate endorsement that it will often be somewhat spare on details.

[12] I do not propose to recite the numerous cases put before me in these reasons because I think that those cases do not establish a determinative range of sentence for the present case in the sense that they would clearly demonstrate that either Mr. Anger or Ms. Macchia was wrong in their submissions. The factual variances of offender and offence that arise in "possession for the purpose" of marijuana cases are such that any "range" would necessarily be extremely broad, and that is before the evidentiary problems with respect to quantity that exist in this case.

Immigration Consequences

[13] I was presented with a letter from an immigration lawyer with respect to Mr. Bao's status in Canada and the enormous jeopardy that status creates for him. Mr. Bao has been a permanent resident of Canada for twelve years. His previous criminal convictions resulted in a removal order being made against him. On appeal, the removal order was stayed for four years and then cancelled in 2013. A conviction for the present offence is likely to result in Mr. Bao being "written up" as inadmissible to Canada for serious criminality and is likely to result in a removal order. If he receives a sentence of six months' actual imprisonment or longer, he will have no right to appeal any removal order, despite his long residence in Canada and the presence here of his wife, children, parents and three sisters.

[14] The law has long been clear that the existence of collateral immigration consequences is a relevant consideration on sentence, but any such consequences cannot justify imposing a sentence that is outside the appropriate range of sentence: R. v. Pham, 2013 SCC 15. A sentencing judge should not distort an appropriate sentence in order to circumvent Parliament's choices with respect to the admissibility and removal of permanent residents or visitors from Canada. Judges must respect the choices Parliament makes even if those choices may seem harsh or may result in harsh outcomes in particular cases. It is only if Parliament's legislative choices violate constitutional standards that judges will be entitled to disregard them. The validity of the Immigration and Refugee Protection Act provisions concerning removal of permanent residents and rights of appeal from removal orders were not in issue before me.

Sentencing Objectives

[15] The Criminal Code calls for sentences that deter offenders and others, that denounce criminal behaviour as unacceptable, that seek to rehabilitate offenders and that enable offenders to make amends for the effect of their crimes on their society. These objectives are often difficult to reconcile. Optimizing the achievement of those disparate objectives may call for a combination of different sentencing options. The Code says that jail should be used as a sentencing tool only when necessary and only to the extent necessary. I think it can safely be said that deterrence and denunciation are prominent considerations when sentencing for offences related to trafficking in controlled substances. This is also true of cannabis, even though cannabis has come to be recognized as being at the lower end of seriousness among the various substances controlled by the Controlled Drugs and Substances Act.

Cannabis Legalization and Sentencing

[16] There has been much debate over the past several years and beyond about whether cannabis should be decriminalized or even legalized. That debate has taken place in Canada and elsewhere. There is legislation pending before the Senate of Canada, having received third reading in the House of Commons at the end of November, 2017. That legislation would permit adults to purchase limited amounts of cannabis products from regulated entities for recreational use, expanding lawful marijuana availability well beyond the scope of medical marijuana availability. It is expected that the legislation will become law in the summer of 2018, although neither the date nor even the outcome is necessarily written in stone.

[17] Mr. Anger argued forcefully that in deciding upon the appropriate sentence for Mr. Bao, I should not take into account the possible, or even likely change in the law concerning marijuana in this country. In making that argument, Mr. Anger is in good company. He cites the observations of Woollcombe, J. in R. v. Strong, 2017 ONSC 3163, and of Trotter, J. (as he then was), in R. v. Tran, 2016 ONSC 3225. Those decisions, and the decision of the Court of Appeal in R. v. Song, 2009 ONCA 896, make it clear, in the words of Trotter, J., at paragraph 26 of Tran, supra, that, "members of the public are not free to select which laws they wish to obey, even with the prospect of reform on the horizon." Indeed, Mr. Bao committed his offence under a federal government that took an ever-more-strict approach to street drugs; it was not until some months after his offence that the government that now proposes a dramatically different approach to cannabis was elected and two years have passed since that date. It also bears noting that one of the express rationales for changing the way in which cannabis is regulated in Canada is to deprive criminal organizations of the massive revenue streams they have derived over the years from cannabis sales. However limited his role may have been, Mr. Bao was a participant in that very activity of criminal accumulation of wealth.

[18] It seems clear, therefore, that Mr. Bao must be sentenced in light of the law as it is, not the law as it might be, which looming law would arguably convert the regulation of cannabis in Canada from a purely criminal law model to a model with many of the characteristics of alcohol and tobacco regulation. At the same time, the sentence imposed on him must, like any sentence, take into account the social mores of the time when he is sentenced. Canadian society has come a tremendous distance from the hysterical and fear-mongering outlook towards cannabis characterized by films such as Reefer Madness in the 1930s (and criminal law policies that were not much more rational than that film), to a more nuanced view that, while cannabis use presents some very real dangers, especially for some groups such as young people, it also has rather benign uses no worse than alcohol, as well as some medically advantageous uses, including uses that could be much safer than society's over-reliance on prescribed opioids for pain relief, the effects of which this court sees daily. Recognizing those social realities in determining an appropriate sentence, like recognizing any social reality that changes over time in imposing sentence, is qualitatively different than calling in aid a legislative change that has not taken place, even if it may lead some distance down the same path in determining sentence.

Sentencing Decision

[19] As I have noted, even with the looming advent of fundamental change in the regulation of cannabis, Mr. Bao's offence must be punished with a primary view to denunciation and deterrence. The need for denunciation and deterrence justifies the imposition of a jail sentence, but does not necessarily call for a jail sentence in the range called for by the Crown, even where "a lot" of marijuana is involved as is the case here. Wherever possible, a "just" sentence as mandated by s. 718 of the Criminal Code, will aim to achieve as many of the objectives of sentencing as are relevant on the facts of a particular case. I am satisfied that Mr. Bao is principally pro-social in his nature and is a good candidate for rehabilitation. It is in his interest, his family's interest and also society's interest, that he continue to be a contributing member of society, following the track record he established in this country for the past decade and in China as a teenager. To that end, ninety days of jail to be served intermittently would satisfy the need for incarceration as a primary expression of denunciation and deterrence. The pre-sentence report makes it clear that Mr. Bao would be a suitable candidate for community service, which would allow him to pay society back as part of his overall sentence.

[20] An increased victim surcharge would also serve society's interests and would reflect the fact that cannabis trafficking is a profit-driven venture, no matter what role the offender plays or how much he profits from it. Increasing the victim surcharge on this type of offence is also rationally connected to the objectives of the surcharge. As I have noted, whatever beneficial or benign value cannabis may have, it seems well-recognized that it can cause significant and even permanent damage when used by teenagers. An unregulated cannabis market such as the one Mr. Bao played a role in, is not likely to concern itself with the age of its customers. Anyone who presides in a criminal or youth court knows that it is disturbingly common to read in pre-sentence reports that an offender has started consuming marijuana very early on, which can be one of the factors in the offender's path into criminality, leaving a variety of victims in that offender's and the trafficker's wake. "The evil that men do lives after them." Based on what I have heard during submissions, I am satisfied that Mr. Bao has the capacity to pay an enhanced victim surcharge. I do not doubt that it would sting, but that is part of the point.

[21] All of those elements put together strike me as constituting a sentence that is within the appropriate range of sentence for this offender and this offence. The removal of any one of them would, in my opinion, render the sentence unfit. Accordingly, the sentence I impose on Mr. Bao is as follows:

Sentence

(1) Ninety days' imprisonment to be served intermittently

(2) Three years of probation, starting today, on the following terms:

(a) report to the jail on time, sober and not in possession of or under the influence of controlled substances;

(b) report to probation within seven days from today and thereafter as required by probation;

(c) Mr. Bao's obligation to report to probation will end when he (i) has completed all of his community service hours to the satisfaction of probation, and (ii) has satisfied probation that he has paid the victim surcharge in full;

(d) make reasonable efforts to obtain/maintain suitable employment;

(e) perform two hundred and forty hours of community service during the first eighteen months of the probation order, at a placement and on a schedule to be approved by the probation officer;

(f) sign releases and provide proof of compliance to allow the probation officer to monitor compliance with the terms of this order;

(g) starting in the second quarter of 2018, make payments of not less than $600 towards the victim surcharge every calendar quarter (January to March, April to June, July to September, October to December) and provide proof of payment to the probation officer.

[22] There shall be an increased victim surcharge of $5,000.

[23] There shall be a weapons prohibition under s. 109(2)(a) of the Criminal Code for ten years from the completion of Mr. Bao's intermittent sentence and under s. 109(2)(b) for life.

[24] The offence of possession of cannabis for the purpose of trafficking is an enumerated secondary designated offence for the purpose of the DNA provisions of the Criminal Code. As a result, I am required to balance Mr. Bao's privacy interest in his DNA, which is not trivial, against the public interest in the DNA data bank, which is compelling. Although Mr. Bao's previous offences are quite dated, they are not themselves trivial and the current offence reflects involvement in profit-driven criminality. All things considered I am satisfied that, applying the analysis set out by the Court of Appeal in cases such as R. v. F. (P.R.), Mr. Bao's privacy interest must yield to the public interest and I order that he provide a sample of his DNA for inclusion in the DNA data bank.

[25] I recommend and request that the Ministry of Community Safety and Correctional Services allow Mr. Bao to serve his intermittent sentence at the Toronto South Detention Centre given that he lives in Scarborough.

Released: 2 March, 2018

Footnotes

[1] These reasons (but not the footnotes) were read in court on 2 March, 2018 and a copy was provided to the parties. The reasons as read in court vary slightly, but not materially from the written reasons. The variances affected only sentence structure and not substance and were made in order to facilitate the interpretation by the use of shorter sentences than some of those that appear in this document.

[2] A conditional sentence was an available option at the time of Mr. Hoang's offence; it is not now.

[3] A more interesting sentencing debate may come if the current legislation becomes law, which seems likely. Alcohol and tobacco have long inflicted carnage on the health and lives of Canadians. The background materials to the pending legalization bill suggest that alcohol and tobacco have done much more harm to humans than cannabis. If the marketing and regulation model adopted by Parliament and the legislatures treats marijuana similarly to alcohol and tobacco, with sales limited to licensed vendors, limitations on advertising, limitations on sales to minors and so on, and if the relative societal dangers of the three commodities are the same (or if the net societal dangers of cannabis are less than alcohol or tobacco), would a sentencing regime for violating the cannabis regulatory model that differs dramatically from the sentencing regime for violating the alcohol or tobacco regulatory models violate the principle of proportionality, which is a cardinal principle of sentencing and one which enjoys constitutional status? Or would such an argument impinge on Parliament's right, perhaps obligation, not to repeat the enshrined mistakes of previous generations in relation to insufficient regulation of alcohol and tobacco? That, however, is an issue for another day, perhaps never.

[4] Unlike many of the scenarios in Reefer Madness, the potential for marijuana consumption by teenagers to compromise brain development is science rather than science fiction. See, for example: A Framework for the Legalization and Regulation of Cannabis in Canada, The Final Report of the Task Force on Cannabis Legalization and Regulation, 30 November, 2016.