COURT FILE NO.: CR-22-10000301-0000 DATE: 20240312 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - MARTIN LEVY, Kristopher Matthews, JEVAUGHN MEYERS, JERMAINE WATSON, STEPHANIE WISEMAN and ZEYU ZANG

Counsel: Erin Pancer, Colin Sheppard and Christopher Assie, for the Crown Elliot Willschick, for Mr. Matthews

HEARD: September 5, December 1, December 18, 2023; January 12, February 8 and 27, 2024

M. Forestell J.

REASONS FOR SENTENCE OF Kristopher Matthews

Overview and the positions of the Parties

[1] Kristopher Matthews entered a guilty plea on September 5, 2023, to one count of kidnapping and one count of administering a stupefying drug to overcome resistance. Mr. Matthews’ sentencing proceeded over several days in late 2023 and early 2024. I reserved my decision on sentencing until today.

[2] The charges arise out of the kidnapping of Wenbo Jin on January 21, 2020. Mr. Jin, an international student studying at the University of Toronto, was kidnapped and held for 13 days while his kidnappers attempted to obtain ransom money from Mr. Jin’s parents.

[3] The Crown seeks a sentence of 20 to 25 years for the kidnapping and 3 years consecutive for administering a substance to overcome resistance. The Crown also seeks an order under s. 743.6 of the Criminal Code that Mr. Matthews be required to serve at least one-half of his sentence before being eligible for full parole.

[4] Counsel for Mr. Matthews submits that a global sentence in the range of 10 to 13 years is appropriate before credit for presentence custody [^1]. He opposes the order under s.743.6.

Circumstances of the Offences

[5] The circumstances of the offences before me are set out in detail in the 20-page Agreed Statement of Facts entered as Exhibit 1 on the sentencing hearing.

[6] Mr. Matthews was hired by Jermaine Watson to break into the condominium unit of Mr. Jin, an international student studying at the University of Toronto. Mr. Matthews was instructed to take control of Mr. Jin by force, put him in a hockey bag and transport him to another location where they would hold him for ransom.

[7] On January 21, 2020, Mr. Matthews was driven to an area near the condominium building where the victim lived. He discussed the kidnapping plan with others who were present. The licence plates on the vehicle were changed. Mr. Matthews and another man were driven to the building where a third man let them into the building by the back entrance. Mr. Matthews brought a large hockey bag with him into the building. Mr. Matthews gained entry to the victim’s unit with a key that had been provided to them. Mr. Matthews and the other man were both masked. They entered the victim’s bedroom and pointed a replica firearm at the victim. They taped the victim’s mouth, blindfolded him and zip-tied his hands and feet. They then removed the tape and force fed the victim a sedative. Mr. Matthews believed that the sedative would render the victim unconscious, but it did not do so. He then gave the victim three or four more doses of the sedative. The victim did not fall asleep.

[8] After discussion with others, they brought in a dolly, loaded Mr. Jin into the hockey bag and took him to the van. They warned him not to make any noise. They loaded Mr. Jin into the waiting van and took him to an address north of the city. Mr. Jin was placed in a bedroom on the second floor of the house. He was chained and blindfolded, the door was locked and there was wood over the windows. There was a camera outside the door so that his captors could watch the room. Mr. Matthews did not stay overnight at the residence, but attended on a number of occasions and took shifts watching Mr. Jin. Mr. Matthews socialized with Martin Levy, Stephanie Wiseman and Jevaughn Myers who were staying at the residence. On January 28, 2020, Mr. Matthews was in a car driven by Stephanie Wiseman when he was arrested by Halton police for a separate offence. After the arrest of Mr. Matthews, Mr. Jin was held for a further five days before being rescued by police.

[9] Mr. Matthews was paid cash for his role in the offence and expected to receive more cash after the ransom was paid.

Victim Impact

[10] The victim, Mr. Jin, has provided a Victim Impact Statement. He was terrified by the ordeal he suffered. He was held in inhumane conditions. He continued to suffer from the trauma of his captivity even after his rescue. The health of his family was also impacted by these offences. Mr. Jin’s education was interrupted and delayed by the offences.

Circumstances of the Offender

[11] Mr. Matthews is 32 years old. He has completed high school. He reported to the probation officer who prepared the Presentence Report that he had worked as a mechanic, as a general labourer and as a landscaper.

[12] Mr. Matthews has a lengthy criminal record with 20 entries (55 charges) beginning when he was a youth in 2009. The majority of the entries on his record relate to dangerous operation of a motor vehicle, driving while disqualified, possession of property obtained by crime and failing to comply with court orders. In 2011 he was convicted of break and enter and commit arson and in 2019 he was convicted of break and enter and commit assault.

[13] Mr. Matthews was on probation and on bail at the time of the commission of the offences before me. He is awaiting sentencing on charges in another jurisdiction that arise out of two home invasion robberies committed shortly before the kidnapping of Mr. Jin.

[14] The Presentence Report indicates that Mr. Matthews’ father was an alcoholic who had little involvement in Mr. Matthews’ life. Mr. Matthews reported that he experienced physical abuse at the hands of his stepfather.

[15] Mr. Matthews reported using substances from 2012 to 2017. He would not disclose to the probation officer what substances he used. He told the probation officer that he had previously completed counselling for substance abuse and would not benefit from further counselling. According to Ministry of the Solicitor General files, Mr. Matthews previously used opiates and experienced an opiate overdose during his last period of incarceration.

[16] In his submissions, counsel for Mr. Matthews stated that Mr. Matthews had an addiction to Fentanyl and was using Fentanyl at the time of the offences. In his allocution to the court, Mr. Matthews stated that he was using methamphetamine at the time of the offences and that he committed the offences because he was in debt to the people who recruited him.

[17] In late November and early December of 2023, Mr. Matthews completed two programmes in the detention centre: Anger Management and Substance Abuse. He has also worked in the kitchen.

[18] Since his incarceration, Mr. Matthews has been participating in Indigenous programming at the Toronto East Detention Centre. Mr. Matthews believes that he has Indigenous roots and is interested in connecting with further Indigenous programming. There is no Gladue report in this case because Aboriginal Legal Services could not confirm Indigenous heritage for Mr. Matthews.

Legal Principles and Analysis

[19] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, is to “contribute …to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community”.

[20] In sentencing for kidnapping, denunciation, deterrence and the protection of the public must be the primary objectives.

[21] As the British Columbia Court of Appeal explained in R. v. Poon, 2008 BCCA 64: ...kidnapping strikes at the heart of the community's sense of safety and security. It is an offence that is intended to incite fear and terror in not only the person kidnapped, but also his or her family and friends, many times using that fear to extort money in return for that person's safe return. Even when the victim is released without having sustained any permanent physical injuries, the psychological and emotional scars may be slow to heal, if they ever do.

[22] There is a wide range of sentence for kidnapping, ranging from 6 years to life imprisonment. Sentences in the 6 to 10-year range are considered to be at the low end of the range and are reserved for cases that do not have aggravating features like gratuitous violence and for offenders who played a lesser role. Sentences in the mid-range of 10 to 14 years have been imposed for serious kidnapping cases involving ransom: R. v. Marozoff, 2010 BCCA 546. Even youthful first offenders have received sentences in this range: R. v. Hernandez, 2009 BCSC 474; R. v. Wong and Poon, 2008 BCCA 64. A minimal role in the offence and mitigating personal circumstances may, exceptionally, bring the sentence below the 6 to 10-year range: R. v. Brar, 2014 BCCA 175; R. v. McKinnon, 2015 BCSC 1116; R. v. Hazout, 1999 C.C.C. (3d) 474 (Ont. C.A.); R. v. Baksh, [2006] O.J. No. 2398 (S.C.).

[23] Generally, the cases in which sentences at the higher end of the range have been imposed – 16 years to life imprisonment – have involved offenders who participated in the planning of the kidnapping and who have criminal records and circumstances that include assaulting and threatening the victims: R. v. L.D. [2002] O.J. No. 4695 (C.A.), affirming [2000] O.J. No. 739 (S.C..J); R. v. Mulvahill, [1993] B.C.J. No. 16; R. v. Mulvahill, [2003] B.C.J. No. 2768.

[24] In R. v. Brar, 2014 BCCA 175, the British Columbia Court of Appeal identified criteria that are indicative of the gravity of the offence of kidnapping. These are: (a) The purpose of the kidnapping, specifically whether it is carried out for ransom or as a means of extorting a payment or repayment from the victim; (b) The extent to which there is planning and premeditation; (c) The length and conditions of the confinement; (d) The extent to which there is violence, torture or significant physical injuries; (e) Whether third parties are threatened; (f) Whether guns are used; (g) Whether there is gang involvement; (h) Whether the kidnapping occurs in the course of the commission of another offence; and (i) The circumstances in which the kidnapping ends.

[25] This was a kidnapping for ransom; it involved a home invasion; there was significant planning and premeditation; replica guns were used; the conditions of the confinement were inhumane and prolonged, and the kidnapping ended only with the rescue by law enforcement.

[26] In R. v. Hernandez, the circumstances of the kidnapping were similar to the circumstances before me. The victim was taken from his vehicle and held for eight days. The offenders used what appeared to be real guns. The victim was tied for at least some of the time with zip-ties and his eyes were covered by duct tape. The police rescued him after the eight days of captivity.

[27] Two of the offenders in Hernandez were 20 and 21 years old at the time of the kidnapping. Neither had a criminal record. The sentencing judge found that he could not conclude that Mr. Hernandez was involved in the planning of the kidnapping. He found that Mr. Nguyen was involved in the planning. Mr. Hernandez was sentenced to 12 years imprisonment and Mr. Nguyen to 13 years. Mr. Nguyen appealed his sentence and the sentence was upheld by the Court of Appeal.

[28] The British Columbia Court of Appeal, in upholding Mr. Nguyen’s sentence, identified general deterrence as a primary objective of sentencing in cases involving a high degree of planning and premeditation: R. v. Nguyen, 2009 BCCA 546. Similarly, in R. v. Raber, 1983 ABCA 325, the Alberta Court of Appeal observed kidnapping for ransom must attract a deterrent sentence. The Court explained that, “[T]hose who commit crimes of this sort do so after some planning and deliberation. This deliberation, we are persuaded, includes an assessment of the chance of evading capture and also an assessment of the penalty which the criminal will suffer if caught.”

[29] The offence of administering a substance to overcome resistance is also a serious offence. It has a maximum sentence of life imprisonment. In R. v. Beszedes, 2013 BCSC 2500, the offender pleaded guilty to twice administering a drug to facilitate robberies and once to facilitate a sexual assault. He was sentenced to consecutive terms of three years each.

[30] As Williams J. observed in Beszedes, supra, at para 82, “The administration of those drugs is insidious in that it renders an individual helpless and powerless. That person has no control over what occurred; it is a state of absolute vulnerability.”

[31] Aggravating factors with respect to the circumstances of Mr. Matthews are: Mr. Matthews played a role in both the planning and implementation of the kidnapping; he has a criminal record; and, he was on probation and bail at the time of the offences.

[32] Mitigating factors are Mr. Matthews’ guilty plea and his remorse. I do not find that the timing of the guilty pleas or the strength of the case against Mr. Matthews should reduce the mitigation attributed to this factor. The administration of justice was spared the expenditure of resources at a time when resources are scarce. Mr. Matthews has accepted responsibility and has expressed remorse through his guilty pleas.

[33] Another important mitigating factor in this case is that Mr. Matthews was incarcerated in a detention centre through the COVID-19 pandemic. The harsh conditions of presentence custody in the Toronto area are well known and have been the subject of considerable judicial comment. Like many others, Mr. Matthews endured lockdowns for days and sometimes weeks. He was denied access to phones, visits, and basic hygiene.

[34] Mr. Matthews’ circumstances and his role in these offences place him at the mid to upper-range of sentence. He was not the ‘mastermind’ of the kidnapping in this case, but he played a role in the planning and was integral to the execution of the plan. He was part of the invasion of the victim’s home. Mr. Matthews has been consistently involved in criminal activity for a lengthy period of time. His criminal conduct has escalated. He appears to have little interest in rehabilitative programmes. However, his guilty plea and acceptance of responsibility are mitigating. Before consideration of harsh conditions of detention, I would have imposed a sentence of 14 years. The harsh conditions and lockdowns merit consideration in mitigation and I would reduce that otherwise appropriate sentence by 12 months to 13 years.

[35] In the circumstances of this case and Mr. Matthews’ record, I find that a two-year sentence should be imposed for the offence of administering a substance to overcome resistance.

[36] As the Supreme Court of Canada has recently affirmed in the case of R. v. Marchand, 2023 SCC 26, the proper approach to sentencing for multiple offences is to first make a determination of the appropriate sentence for each offence, then to determine whether the sentences should be consecutive or concurrent and finally, to consider the principle of totality.

[37] In this case, I find that the sentences for kidnapping and administering a drug to overcome resistance should be served consecutively. The offences were committed as part of what can be characterized as a single criminal adventure, but they constituted invasions of different legally protected interests. The administration of the drugs was a separate invasion of the bodily integrity of the victim.

[38] Having determined the aggregate sentence of 15 years, I must apply the principle of totality and assess whether the total sentence is “unduly harsh and long, in the sense that it is disproportionate to the gravity of the offence or the degree of responsibility of the offender.” (Marchand, para. 99).

[39] I conclude that a sentence of 15 years is not unduly harsh and long in light of the overall culpability of Mr. Matthews. I acknowledge that rehabilitation must be considered. While there is little to suggest that Mr. Matthews will take steps towards rehabilitation, he has pleaded guilty, and he has shown some remorse. He is a relatively young man. The aggregate sentence in this case is long but it is not ‘crushing’.

[40] The final issue for me to determine is whether I should make an order under s.743.6 of the Criminal Code denying Mr. Matthews the possibility of obtaining full parole until he has served at least half of his sentence.

[41] As acknowledged by the Crown, s.743.6 should be used sparingly and only in circumstances where clear evidence has been led justifying the belief that the offender represents a continuing danger to society. The Crown points to the two home invasion robberies upon which Mr. Matthews is awaiting sentence and to the facts underlying the counts before me to support the submission that Mr. Matthews represents a danger to society. The Crown also relies on the fact that Mr. Matthews has made little effort to pursue rehabilitative programmes while in custody.

[42] I am not satisfied that the danger presented by Mr. Matthews justifies an order under s.743.6 delaying his eligibility for parole. Mr. Matthews will serve a substantial period of imprisonment even with eligibility for parole. He will have access to programming and his participation in appropriate programming will impact on his suitability for parole. I am of the view that this is not a case where the aggravating factors warrant the exceptional order requested.

[43] The sentence that I impose therefore, is a sentence of 13 years for the kidnapping count and a sentence of 2 years consecutive on the charge of administering a noxious substance to overcome resistance, for a global sentence of 15 years or 5478 days.

[44] Mr. Matthews has been in custody for 1,470 days. With credit at 1.5 to 1, he is entitled to credit of 2,205 days. This leaves 3,273 days (or 8 years and 11.5 months) left to serve.

[45] In addition, there will be a s. 109 weapons prohibition for life. Kidnapping is a primary designated offence and I make a DNA order as well.

M. Forestell J. Released: March 12, 2024

[^1]: There was, at the initial sentencing hearing, a lack of clarity concerning the amount of presentence custody that should be credited on this sentence. This lack of clarity arose because Mr. Matthews had entered guilty pleas to charges in another jurisdiction before entering guilty pleas on the charges before me. He has not yet been sentenced on those charges. It was not clear whether the presentence custody was to be considered on that sentence or on the sentence before me. It has now been made clear that the sentence on the other charges will be 5 years’ imprisonment to run concurrently to the sentence that I impose on Mr. Matthews and that he will use his presentence credit on the charges before me.