Court File and Parties

COURT FILE NO.: CR-22-90000462-0000 DATE: 20230202

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – LUAN NGO

Counsel: Althea Francis, for the Crown Barry Fox, for the Accused

HEARD: January 6, 2023

G. ROBERTS J.:

REASONS FOR SENTENCE

OVERVIEW

1Following a brief and efficient trial, I found Luan Ngo guilty of following offences:

• production of methamphetamine on or about April 6, 2020;
• possession of methamphetamine for the purpose of trafficking on or about May 11, 2020; and
• possession of proceeds of crime over $5000 on or about May 11, 2020.

2The Crown seeks a sentence of eight years in the penitentiary.

3Defence counsel seeks a sentence of four to five years in the penitentiary.

4In all the circumstances of the offence and the offender, I believe a sentence of seven years in the penitentiary is fit and appropriate.

CIRCUMSTANCES OF THE OFFENCE

5Defence counsel agreed that the Crown’s case could be tendered by way of agreed statement of facts. In particular, defence counsel conceded that the building at 889 Kipling was being used as a methamphetamine lab, and that it contained a kilogram of finished methamphetamine when the search warrant was executed on May 11, 2020. [1] The trial was focused on whether Mr. Ngo knew about the lab and the methamphetamine. He testified that he did not. For reasons I explained in my judgment, R. v. Ngo, 2022 ONSC 5385, I rejected his evidence, and found that he did know about the lab and the methamphetamine, and that he was guilty of producing methamphetamine, possession of methamphetamine for the purpose of trafficking, and that the $11,000 cash found in his home was proceeds of crime.

6This was a large-scale operation, involving the coordinated efforts of numerous people, over at least a month. Police installed a covert camera which recorded the back entrance to 889 Kipling between April 14 and May 11, 2020 (this date range was provided in submissions and does not appear controversial). The covert camera showed that Luan Ngo, Bau Diu, Jung Peng Wu, and Thanh Pham were regularly inside the lab for hours at a time. More specifically, it captured Mr. Ngo and others in the lab for hours (on average 9 hours a day) on 11 days over the 12-day period leading up to the search (missing only Sunday May 3 – see my reasons for judgment after the trial cited above).

7Diu, Wu, Pham, and another man, were seen bringing in supplies consistent with those used in the production of methamphetamine. For example,

• on April 28, Diu and Wu can be seen bringing two boxes resembling Lapalm acetone boxes into 889 Kipling (later the same day they were observed delivering pizza-shaped boxes consistent with boxes used for Ephedrine pouches to other locations, including 18 Lamberton where multiple cardboard boxes containing Ephedrine in pouches were found during the searches on May 11);
• on May 2, Diu and Wu can be seen carrying boxes consistent with boxes used to transport Pseudo-Ephedrine into 889 Kipling;
• on May 4, Diu and Pham can be seen to carry five-gallon buckets, two blue jugs, water and paper towel into 889 Kipling.

8While Mr. Ngo was never seen helping with this work, he was regularly seen with Diu, Wu and Pham, entering at the same time, or within minutes of each other, and leaving at the same time, or within minutes of each other, appearing to chat as they did so. The men appear to have had different roles. For example, Mr. Pham, who does not appear to have a key to 889 Kipling, appeared to be the person who left and returned with what appeared to be drinks and bags of food. Mr. Ngo was usually the last one out of the lab, locking the door for the night.

9The lab produced significant quantities of methamphetamine. I found that the entire building, apart from a small office type room at the front containing a video recorder, was being used for methamphetamine production. Photographs contained in trial exhibit one show what the inside of the building looked like when the search warrant was executed on May 11, 2020. As noted above, police found a kilogram of finished methamphetamine (worth about $24,079 in 2020). They also found the following:

• substantial quantities of chemicals used in the production of methamphetamine, including barrels of toluene, bags of Sodium hydroxide (caustic soda), acetone, barrels of iodine, Ephedrine tablets, Hydrochloride gas cylinders (see description of chemical process used to produce methamphetamine from Ephedrine tablets in Scott McGregor’s expert report contained in trial exhibit one);
• tools used in the production of methamphetamine, including an industrial size gas burner, glass round bottom flasks (one was on the burner and contained methamphetamine and ephedrine, and others were in boxes), sieves and substances being reduced with the help of large fans on top of them, a drill mixer, digital scales, blue square jugs typical of those used to store hypophosphorous acid;
• substantial quantities of chemical waste from the production of methamphetamine, such as white dust and pails of Ephedrine extract and waste product;
• the building itself had been altered, including windows covered and the side door near the industrial burner blocked, and a large ventilation system had been installed;
• safety equipment was present throughout the building, including air purifying respirators (APR's - located at the threshold to the area near the burner), coveralls, masks and gloves (located in the first room you enter from the back “man door” (the door used by Mr. Ngo and his associates) and garage door);
• when the search warrant was executed, dust was everywhere, and fumes filled the air.

10On two occasions (May 2 and 5) Diu was followed from the lab bringing a package to Carmen Hernandez. When Ms. Hernandez’s premises were searched on May 11, police found 10 kg of methamphetamine, and $17,000 cash.

11When Mr. Ngo’s home was searched at the same time as the lab, on May 11, police found four glass round bottom flasks similar to those found in the lab and used in the production of methamphetamine. One of the flasks found in his home was in a "Chemglass" box addressed to "AL GOLD SEAL ENGINEERING 1220 DUPONT ST. TORONTO". A similar box with a similar label was found at 889 Kipling. Police also found two blue containers consistent in size, colour and shape to containers found at 889 Kipling which the expert noted were consistent with containers used to store hypophosphorous acid.

CIRCUMSTANCES OF THE OFFENDER

12Mr. Ngo was born on March 13, 1976 in Vietnam. In 1993, when he was 17, he fled Vietnam with his parents and siblings and came to Canada, travelling by boat. He is a landed immigrant. He is currently 46 years old. He lives with his common law partner of 24 years. They have three children, aged 23, 18, and 12. He lives at 107 Iceland Poppy Trail, Brampton. He has a dated and unrelated criminal record (a finding of guilt for failing to attend court in 2010, for which he received a fine).

13Mr. Ngo has no history of drug use or abuse.

14Mr. Ngo testified at trial that he had a renovation company and his only purpose inside 889 Kipling was to renovate a bathroom. He did not know anything about the production of or presence of methamphetamine. I rejected this explanation, for reasons I explain in my trial decision. I was not given any further information about Mr. Ngo’s occupation or work history.

LEGAL PARAMETERS AND RANGE OF SENTENCE

15Production of a Schedule I substance (such as methamphetamine), contrary to s.7(1) of the Controlled Drugs and Substances Act (CDSA), is an indictable offence punishable by a maximum sentence of life imprisonment. The previous minimum sentences, together with the statutory aggravating factors enumerated in s.7(3) of the CDSA, were repealed on November 17, 2022, when Bill C-5 came into effect. Prior to Bill C-5, there was a minimum sentence of two years, or three years where any of the factors in s.7(3) applied, which were:

(a) the person used real property that belongs to a third party in committing the offence; (b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area; (c) the production constituted a potential public safety hazard in a residential area; or (d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.

16Possession of a Schedule I substance for the purpose of trafficking, contrary to s.5(2) of the CDSA, is an indictable offence punishable by a maximum sentence of life imprisonment. The previous minimum sentence of either one or two years, depending on whether the Crown proved one of the aggravating circumstances set out in s.5(3)(i) and (ii), was repealed on November 17, 2022, as were the statutory aggravating factors set out in s.5(3)(i) and (ii).

17Possession of over $5000 in proceeds of crime, contrary to s.354(1)(a), is a hybrid offence. Where prosecuted by way of indictment, as in this case, it is punishable pursuant to s.355 to a maximum sentence of 10 years. There is no minimum sentence.

18The range of sentence for producing methamphetamine in a clandestine lab is broad, spanning about 5 to 16 years. The offence has been likened to importing. As Justice Clark explained, for both importing and production, the accused is “the principal means by which the drug becomes available to the Canadian consumer”: R. v. Chui, 2015 ONSC 2490, at para. 50; see also R. v. Ling, 2012 ONSC 654, sentence upheld 2014 ONCA 808; and R. v. Chen, 2019 ONCJ 385, at para. 24. The production of methamphetamine also imposes specific and significant risks on the community arising from the surreptitious use and disposal of dangerous chemicals. Case law from Ontario is summarized in a sentencing chart at Appendix A. In addition to the now-repealed statutory aggravating factors set out above, factors relevant to situating a case within the range include:

• the size, scale, sophistication, and location of the laboratory;
• the duration of production;
• the role of the accused;
• the amount and value of methamphetamine produced and found;
• whether the motive is profit or addiction;
• potential harm to the surrounding community, including presence of explosive, flammable, reactive and toxic chemicals, toxic waste produced by production, associated environmental damage, and the presence of armed and dangerous criminals associated with the trade in illegal drugs;
• the harmful nature of methamphetamine, including the fact that it is highly addictive, the serious risk it poses to a user’s health (including brain and/or heart damage), and its potential for inducing aggression and violence: R. v. Cote, 2002 BCCA 29, at para. 10.

19The “loose range” of sentence for possession of approximately one kilogram of methamphetamine for the purpose of trafficking is five to eight years: R. v. Luu, 2021 ONCA 311, at para. 34, referencing R. v. Hien and Ly, (10 February 2016), Brampton, 450/14 (Ont. S.C.), per Durno J.

20The maximum penalty and range of sentence provide information about the objective seriousness of an offence. The range in turn “serves as a guide for the application of the relevant principles and objectives” of sentencing. But it is only a guide. Ultimately, a sentence must be proportionate to the particular circumstances of the offence, including its objective seriousness (as suggested by the maximum penalty and the sentencing range), its subjective seriousness (the particular circumstances in which it was committed), and the circumstances of the offender (including the degree of responsibility of the offender): s.718.1 of the Criminal Code; R. v. Friesen, 2020 SCC 9, at paras. 34, 37-38, 96-97, and 108-114; and R. v. Parranto, 2021 SCC 46.

PRINCIPLES OF SENTENCING

21The fundamental purpose and principles of sentencing are now largely codified in s.718 of the Criminal Code. They are lengthy and detailed and mostly very well-established. I will not recite them here but rather apply the most relevant of them below. Section 10(1) of the CDSA incorporates the Criminal Code provisions, and provides that the fundamental purpose of sentencing for offences under ss. 4 or 5 of the CDSA is “to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and the community”.

22As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence. In all instances, as noted above, the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.

COLLATERAL CONSEQUENCES

23Collateral consequences are not necessarily "aggravating" or "mitigating" factors, because they do not relate to the gravity of the offence or the level of responsibility of the offender, but they are relevant because they increase the impact of an offence or sentence. The sentencing principles of individualization and parity require that this impact be considered in order to craft a fit sentence in the circumstances of the offence and the offender.

24Collateral consequences do not need to be foreseeable, or flow naturally from the conviction, sentence, or commission of the offence, but they must relate to the offence and the circumstances of the offender. They include "any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender", and can encompass "physical, emotional, social, or financial consequences". Collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. The fundamental principle of proportionality must prevail in every case: R. v. Suter, 2018 SCC 34, at paras. 46-49.

ANALYSIS - WHAT IS A FIT SENTENCE IN ALL THE CIRCUMSTANCES?

25I will begin my analysis with mitigating circumstances, then move to neutral circumstances, and finally aggravating circumstances.

26Mr. Ngo lives with his long-time spouse and three children. His family is clearly very important to him. When I asked him whether he had anything to say before being sentenced he explained how upsetting it was when the police entered his home to execute the search warrants, and initially detained his wife and children, and seized their computers, which they needed for on-line learning.

27Mr. Ngo’s record is so dated and unrelated that the Crown agrees that he should be treated as a first offender. However, he is not a youthful first offender. Nor would it be accurate to say that he has lived for decades in Canada without falling afoul of the law. Mr. Ngo testified at the trial that he worked in renovations. For reasons I explained in my trial decision, I rejected his evidence that he was inside 889 Kipling in order to renovate a bathroom. As I have noted, no additional information was put before me on sentencing about Mr. Ngo’s work history.

28Mr. Ngo conducted an extremely efficient trial. He admitted the Crown’s case, narrowed the issues, and testified in relation to the sole and essential issue of knowledge. Ultimately, as noted, I rejected his evidence. Nonetheless, I believe he should be given significant credit for the efficient way he ran the trial. He saved a substantial amount of court time during a period when court time is at a premium as we struggle to address the backlog created by COVID-19. While not exactly a mitigating circumstance, I believe he should be given credit for conducting such an efficient and focused trial.

29Mr. Ngo is a landed immigrant. I am told simply that these proceedings “may have immigration consequences”. An immigration consequence such as deportation is a well-established collateral consequence. It greatly exacerbates the effect of a conviction and sentence and must be considered in order to determine a fit sentence in all the circumstances. But it is equally well-established that a collateral consequence, even a certain and serious one, cannot justify the imposition of an unfit sentence.

30Moving to aggravating circumstances, this was an organized, large scale methamphetamine lab, involving planning and deliberation, and concerted action by a team of people, over at least the two weeks captured by the covert camera and detailed in the agreed statement of facts. The chemical ingredients needed to be sourced and obtained, the lab set up and operated, and the final product marketed and sold. The lab was operational when the search warrant was executed. A kilogram of methamphetamine was found inside. So were barrels of waste. The photographs taken when the police entered suggest that it was a very substantial quantity of waste, but there was no direct evidence of exactly how much. The drug expert report (tab 2C of exhibit 1 at trial; exhibit 2 at sentence), which was uncontested, provides that 6-10 kilograms of toxic waste is produced for every 1 kilogram of methamphetamine. Ultimately, I am satisfied that this was an organized large-scale methamphetamine lab. The purpose of the lab was to profit from the illegal trade in methamphetamine.

31Further I am satisfied that Mr. Ngo played a significant role in the production of the methamphetamine at 889 Kipling. The Crown is candid that she cannot prove the precise role that Mr. Ngo played. I agree. Nonetheless, I am satisfied that Mr. Ngo’s role was significant:

• Mr. Ngo logged long hours at the lab, among the longest, if not the longest, of the group regularly recorded entering and exiting the lab on the covert camera, at least according to the material put before me on the trial. Mr. Ngo was almost invariably the one to lock up at the end of each day, including when he left with one or more other people.
• Mr. Ngo was linked to Ab Mandal, who in turn was linked to supplies used in the production of methamphetamine. Police observed that the two met on March 10, 2020, and a wiretap captured numerous telephone conversations between the two (49 of 219 sessions recorded from Mandel’s telephone number between February and April 2020). Mandal was linked to the shipping address on the Chemglass boxes found at both 889 Kipling and Mr. Ngo’s home (both boxes contained labels addressed to "AL GOLD SEAL ENGINEERING 1220 DUPONT ST. TORONTO").
• Mr. Ngo had extra supplies of tools typically used in the production of methamphetamine in his home. The Chemglass boxes found 889 Kipling and at Mr. Ngo’s home had glass round bottom flasks inside. In addition, Mr. Ngo had extra blue jugs, consistent with those typically used to store hypophosphorous acid, a chemical used in the production of methamphetamine.

32Methamphetamine is a dangerous drug, more addictive and dangerous than cocaine in significant ways. The expert report of Chris Miller, which was uncontested, explains that methamphetamine affects the chemistry of the brain and is highly addictive. Chronic abuse may result in cognitive impairment, cardiac damage, an increased risk of Parkinson’s disease, and prolonged psychiatric disorders such as psychosis resembling schizophrenia.

33Methamphetamine can be produced by an amateur chemist, in typically one to two days, but the process involves applying heat to combustible chemicals, posing a significant danger of fire. At best, toxic fumes and waste are created during the production process. At worst, people and buildings burn (labs are often discovered when first responders arrive to put out the fire, as in R. v. Nguyen, 2011 ONSC 6229, for example, summarized in the sentencing chart). In addition, the possession and sale of the finished product can attract armed and dangerous people.

34Appellate courts, including the Supreme Court of Canada, have repeatedly recognized the “staggering” harm of drug abuse and illegal trafficking, including the direct hardship on users and their families and the indirect harm on the community, including the violence of the drug trade, and, in the case of illegal methamphetamine labs, the surreptitious presence of dangerous chemicals, a dangerous process, and the toxic fumes and waste produced as a result: Pushpanathan v. Canada (Minister of Employment & Immigration), [1998] 1 S.C.R. 982, at pp. 1039-40; R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1053; R. v. Lukaniuk (1988), 34 O.A.C. 315 (C.A). As Lamer J. commented in Smith, at p. 123:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. ... Such persons, with few exceptions ..., should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude

35The staggering harm of drug abuse and illegal trafficking mean that the principles of general deterrence and denunciation must be paramount in the sentencing process for importation and production. As the Court of Appeal stated in R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.), at p. 791:

There can be no doubt that commercial traffickers rely heavily on couriers to facilitate their deadly trade. That being so, it falls to the courts to warn would-be couriers, in no uncertain terms, that they will pay a heavy price for choosing to import large quantities of hard drugs for quick personal gain.

See also R. v. Wellington (1999), 132 C.C.C. (3d) 470 (Ont. C.A), at para. 12; R. v. Osei, [2002] O.J. No. 5601 (Ont. S.C.), at para. 11, per Hill J., aff’d , [2004] O.J. No. 65; and R. v. Chui, 2015 ONSC 2490, at para. 26, per Clark J.

36I am also mindful of the principle of restraint, long part of our common law (see e.g., R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (Ont. C.A.), at para. 96), now codified at least in part in s.718.2(e) of the Criminal Code. Restraint is a principle of particular salience in the sentencing of a first offender, even one who is no longer “youthful”: R. v. Batisse, 2009 ONCA 114, at paras. 32-35. I believe that an aspect of this principle is reflected in MacDonnell J.'s caution that we must not lose sight of the fact that an offender is more than his offending conduct, and is an individual with strengths, weaknesses, and potential, who will be returned to the community after serving the sentence: R. v. Katsnelson, 2010 ONSC 2246, at para. 37. In this case, Mr. Ngo is deeply committed to his family, which bodes well for his rehabilitation.

37While I found Mr. Ngo guilty of three distinct offences, they are so closely connected as to constitute a “single criminal adventure”, thus I believe concurrent sentences are appropriate: Friesen, at para. 155.

38Defence counsel urged that the range of sentence for production of methamphetamine was roughly the same as for possession of methamphetamine for the purpose of trafficking. As a result, he argued that an eight-year sentence in this case would be “reaching for the moon”. He noted that the eight-year sentence in R. v. Wu, 2014 ONSC 6000, involved Mr. Wu, who had a prior related record, being found in possession of 175 kilograms of methamphetamine for the purpose of trafficking. I disagree with the premise of the defence position. Production is manifestly more serious than possession for the purpose of trafficking. Like importing, it relates to providing the source of the drugs from which so much pain flows; it is at the apex of the pyramid of pain. In addition, the surreptitious production of methamphetamine is dangerous for unsuspecting neighbours and passers-by, and results in a significant amount of toxic waste harmful to the environment.

39Mr. Ngo was arrested in May of 2020, during the height of COVID-19, and was released on an undertaking with minimal conditions. There is no suggestion of any particular hardship that I should take into account on sentencing. However, I do take into account that Mr. Ngo has abided by the terms of his release without issue.

40In all the circumstances of this case, I believe that a seven-year sentence is fit and appropriate for production of methamphetamine. The seriousness of the offence certainly merits a sentence in the amount requested by the Crown. However, I would reduce the sentence to seven years to reflect the highly efficient manner in which the trial was conducted, and the fact that Mr. Ngo is a first offender with good potential for rehabilitation. I believe seven years is the lowest sentence I can impose which will adequately reflect the seriousness of the offence and provide for general deterrence and denunciation. There will be a concurrent sentence of five years for being in possession of the kilogram of methamphetamine for the purpose of trafficking, and a concurrent sentence of one year for being in possession of the proceeds of crime.

41There will be a s.109 order for 10 years, a DNA order, and the $11,000 cash, which I found to be proceeds of crime, and the other offence related property found during the search of Mr. Ngo’s home, will be forfeited to the Crown.

42Counsel made no submission on the victim fine surcharge. Although the discretionary victim surcharge re-introduced in 2019 in Bill C-75 for offences committed after July 22, 2019 applies, given the fact that the Crown did not ask for it, and the lack of submissions, I do not think it would be fair to impose it.

G. ROBERTS J. Released: February 2, 2023

APPENDIX A

R. v. Ngo – Methamphetamine Lab Operation Sentencing

COURT OF APPEAL FOR ONTARIO

Case Name/Cite: R. v. DiBenedetto, 2019 ONCA 496 Doherty, Watt, and Pardu J.J.A. Sentence: 5 years (Net, including production of meth, p4p trafficking meth, possession of proceeds of crime) Circumstances of Offence: A portion of a barn on a rural property linked to the appellant was housing a meth lab. Police had searched both this rural property and a residential property Circumstances of Offender: No info Plea or Trial: Trial Criminal Record: No info Misc. Notes: Sentence upheld on appeal. Cannot locate trial judgment or original sentencing decision

Case Name/Cite: R. v. Ling, 2014 ONCA 808 Feldman, Epstein, and Benotto J.J.A. Original sentencing decision by McWatt J.: 2012 ONSC 654 Both judgments are referenced in summary. Where there are pinpoints to the original sentencing, I have indicated this by writing (McWatt J.) Sentence: 3 accused facing 6 charges involving 3 different substances: both producing and p4p trafficking meth, ketamine, and MDMA. Ling: 16 years global sentence Jian and Shi: 14 years global sentence. Circumstances of Offence: Police found $12.2 million worth of ecstasy pills at a house in Scarborough. The residence had been turned into a drug lab and drying room with bedrooms on the second floor. Jian and Shi had been living in the house making them. Mr. Ling was moving in to continue making the pills. Mr. Ling had been observed bringing chemicals to the house and was arrested while leaving the residence. The purported ecstasy pills actually also contained ketamine and meth. An RCMP officer said it was the largest operation, aside from one other, that he had seen in twenty years of specializing in drug investigations. While Mr. Ling was moving in to make ecstasy pills, Mr. Jian and Mr. Shi had finished their work and were moving out. All 3 accused were “central operators” in the production of ecstasy pills: at para. 8 (McWatt J.) The Court of Appeal noted that the trial judge correctly identified the fact that Mr. Jian and Shi were “an integral part of the drug operation”, and that Mr. Ling was “obviously a trusted member of the group producing the pills” as aggravating factors. Offence was purely motivated by profit. The fact that the pills were packaged as MDMA so that people would believe they were ingesting a less addictive drug was an aggravating factor. As was the fact that the pills were imprinted with different logos and colours as a “deadly marketing ploy”: at para. 58 (McWatt J.). Circumstances of Offender: Ling: 55 y.o., married, has two adult children. Immigrated from Hong Kong to the US, where his family still resides. May be deported after serving sentence. Eldest son dropped out of post-secondary since father’s arrest to be primary income earner. Jian: 24 y.o., single. Permanent residence who immigrated from China. Lived with his father, who vanished one day in 2006 and has been living with friends since. Does not speak English, but claims to have graduated from high school. Unclear what he did for a living pre-arrest, but claims to have worked at a nail salon while on bail. Shi: 46 y.o.. Came to Canada after escaping prison in China for distributing videos of the Tiananmen Square massacre. Married then divorced. Worked as a chef and received financial support from government. None of the defendants were addicted to or used drugs. All 3 of them maintain their innocence. Plea or Trial: Trial Criminal Record: Ling: No CR Jian: No CR Shi: 2005 conviction for impaired driving Misc. Notes: Sentences upheld on appeal. Although the trial judge erred in considering lack of remorse as an aggravating factor, the sentences still accorded with applicable sentencing principles and objective and were proportionate to the gravity of criminal activity and degree of responsibility: at paras. 12-13. At the original sentencing, the Crown had argued that they should be sentenced as severely as importers of cocaine: at para. 31 (McWatt J.). Justice McWatt agreed and found that "the domestic manufacturing of synthetic drugs has the potential to be more significant than imported drugs due to the relative ease of obtaining the ingredients locally as opposed to the hurdles that have to be overcome to import drugs internationally”: at para. 32.

ONTARIO SUPERIOR COURT OF JUSTICE

Case Name/Cite: R. v. Pham, 2016 ONSC 7943 Mew J. Sentence: 4.5 years (for both concurrently: producing meth, p4p trafficking meth) Circumstances of Offence: A chemical fire occurred at a makeshift meth lab in Toronto. Several buckets were found of precursors to meth, equipment like flasks and gas cylinders, and 522.94g of meth in crystal and liquid forms. Total street level of $28-31k wholesale or $52-78.3k at gram level. No evidence as to additional potential production amounts from precursors. Sole motivation was economic. Circumstances of Offender: 40 y.o. married father of 4. Vietnamese immigrant. Did not complete high school. Worked mostly in installing business signs and previously in home renovation. Recently reconciled with wife, who was supportive. Not a drug user. On house arrest for 1 year, then relaxed to a curfew. Plea or Trial: Trial Criminal Record: Limited CR (producing marijuana and abstracting, consuming, or using electricity or gas – 10y earlier) Misc. Notes: Pham’s sole motivation was economic; not a user himself. Restrictive bail conditions considered as mitigating factor Conviction affirmed on appeal: 2019 ONCA 338, but no sentence appeal

Case Name/Cite: R. v. Chui, 2015 ONSC 2490 Clark J. Sentence: 8 years (producing meth) Concurrent sentences for p4p trafficking meth (5 years), possession of precursor chemicals (3 years), arson by negligence (3 years) After restrictions on bail and pre-trial custody were considered, 7 years actual time. Accused also paid restitution to house owner. Circumstances of Offence: The accused operated a meth lab at a house that he was renting from someone else (aggravating). The house contained various chemicals and gases required to make meth, a host of equipment, and precursors to meth. The operation was discovered when a fire started in the house, arising from the meth cooking process. The meth lab had been operating for 18 months. Damaged the property. 210 grams of meth were found, with enough resources to make around 5.65 kg more. The accused attempted to persuade a person that knocked on the door not to call firefighters because he knew that they would discover the meth lab. Circumstances of Offender: 39 y.o. at time of offence. Poor work record, no high school diploma or marketable skills. Found a job while on bail. Strong family support, living with father and aunt. No indication that the accused was addicted to meth himself. Though the accused technically apologized, Clark J. did not find that he showed genuine remorse: at para. 34. Plea or Trial: Trial Criminal Record: Several convictions for possession of property obtained by crime, but was young at the time and it considered relatively minor. Clark J. treated him as a first offender: at para. 16. Misc. Notes: The Court drew a comparison between importing drugs and producing them: “In Cunningham, at p. 791, the court held that “absent exceptional or extenuating circumstances, the range of sentence for first-offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary.” Although Cunningham dealt with importing, that range is also apposite where the accused is convicted of producing a hard drug. There is no difference in principle between an accused who imports a hard drug and one who produces it; either way he is the principal means by which the drug becomes available to the Canadian consumer”: at para. 50.

Case Name/Cite: R. v. Nguyen, 2011 ONSC 6229 McWatt J. Sentence: 5 years (producing meth) 2y served concurrently for arson by negligence Circumstances of Offence: Mr. Nguyen told police he was approached by two older men who had heard he was good at chemistry in high school. They asked him to make meth and that he would be paid depending how good the product was. Given lessons on producing meth, slept at the house that was used as a meth lab, and provided groceries. He was very scared of the men, who had serious criminal convictions. A fire started when MR. Nguyen was boiling methanol to produce meth, lighting the meth lab and himself on fire. Court found that he was not the controlling mind of the meth operation: had not produced any methamphetamine not paid for involvement. About $249k worth of meth, but the full potential off the lab was about $3.5 million. 200 kilograms of toxic waste generated by lab and disposed of in community. Circumstances of Offender: 20 y.o., youthful offender. Suffered severe burns to 70% of this body as a result of a fire which erupted in the meth lab. Spent 5 weeks in hospital and has permanent scarring. Good candidate for rehabilitation. Plea or Trial: Plea Criminal Record: No CR Misc. Notes: Court accepted that the 6-8 year range suggested by the Crown was appropriate. (This is referenced as well in McWatt’s sentencing for Ling, above) Crown argued that sentencing should be similar to importation of cocaine: at para. 18. Court noted that even before meth was moved from Schedule III to I in 2005, the Court of Appeal had already affirmed cases where trial judges imposed lengthy sentences for meth production. At paras. 14-15, the Court referred to 2 older appellate cases. In one, the appellant received a 6-year sentence, and in the other, the Court of Appeal upheld the trial judge’s sentences ranging from 5-9 years where the appellants had manufactured and trafficked meth for a long period, had criminal records, involved guns, and wore hang colours during the offences.

ONTARIO COURT OF JUSTICE

Case Name/Cite: R. v. Chen, 2019 ONCJ 385 Maxwell J. Sentence: 8 years minus credit (production of meth for purpose of trafficking) 6 years concurrent for p4p trafficking meth, 4y concurrent on unlawful production of MDA and p4p trafficking MDA. Circumstances of Offence: Police executed a search warrant on Mr. Chen’s house, where the basement had been converted into a meth lab and drying room. 23kg of finished methamphetamine was found in the basement, ranging from a worth of $1.2-2.8 million. Also a couple hundred thousand dollars’ worth of MDMA. Accused’s “vital part” of the enterprise to produce drugs was an aggravating factor, but court acknowledged it would be even more aggravating if he had been the “leader or architect”: at para. 30. Circumstances of Offender: 34 y.o. at time of offence. Many letters of support. Lost legitimate businesses in China as a result of the offence and incurred significant debt. Continued to work, obtain an education online and at Seneca College. Unable to marry his long-time fiancée in China until sentence and parole are over. Limited contact with parents and grandmother. Expressed remorse, particularly in letting down family and friends. Plea or Trial: Trial Criminal Record: No CR Misc. Notes: “there is no meaningful difference, in terms of the need for a serious sanction, between an accused who imports a serious controlled substance like cocaine, and one who produces it, or a similarly serious substance. Either way, that person becomes the principal means by which the drug becomes available to the Canadian public.”: at para. 24. ***Great overview of some cases from paras. 35 onwards

Case Name/Cite: R. v. Le, 2015 ONCJ 154 Lipson J. Sentence: 6.5 years (less time served) Global sentence for producing meth, p4p trafficking meth, possession of chemicals knowing they will be used to manufacture meth. Circumstances of Offence: After receiving info from a CI, police began surveillance of the residence of Le and an associate. Discarded garbage from the residents included papers with lists for large amounts of over the counter medications used to create meth. Eventually, after testing an off-white residue collected from additional garbage, police executed a telewarrant and found an active meth lab. When executing a warrant for the other residence, police saw items being placed in the trunk of a car that left the residence. Le and his son were in the vehicle, and a search incident to arrest revealed a significant amount of Claritin and Reactin, as well as a Tupperware container full of pure meth with Le’s fingerprints. Possessed 1kg pure meth, precursors capable of producing 6kg more. Estimated value: - $213-277k wholesale - $700k-1.05mil gram level Circumstances of Offender: 56 y.o.. Grew up in South Vietnam, spent 4y in Indonesian refugee camp before immigrating to Canada. Divorced, father of two. Employed at nail salon. Very remorseful. Spent 5 weeks in pre-trial custody. Plea or Trial: Plea Criminal Record: No CR Misc. Notes: “A review of these sentencing cases leads me to conclude that the lowest end of the range for an offender such as Mr. Le who has no prior record and entered early guilty pleas would be in the 6-7 year range”: at para. 13. *** includes chart for p4p sentencing for meth at para. 10.

COURT FILE NO.: CR-22-90000462-0000 DATE: 20230202 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – LUAN NGO REASONS FOR sentence G. ROBERTS J. Released: February 2, 2023

1Defence counsel conceded that the sample tested was methamphetamine, and that “the quantity of finished methamphetamine found at 889 Kipling was for the purpose of trafficking”. In the circumstances, I find as a fact that the entire kilogram was methamphetamine.