COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lin, 2020 ONCA 768

DATE: 20201204

DOCKET: C64663

Huscroft, Miller and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Xiangming Lin

Appellant

Mindy Caterina, for the appellant

Rick Visca and Kerry Benzakein, for the respondent

Heard: November 2, 2020 by video conference

On appeal from the convictions entered by Justice Mary E. Misener of the Ontario Court of Justice on August 1, 2017 and on September 25, 2017 and from the sentence imposed on November 10, 2017, with reasons reported at 2017 ONCJ 777.

Nordheimer J.A.:

[1] Mr. Lin appeals from his conviction on various drug charges. He also seeks leave to appeal the sentence imposed upon him. At the conclusion of the hearing, we dismissed the conviction appeal, with reasons to follow, and reserved the sentence appeal.

Background

[2] The appellant, his adult son, and his ex-wife were arrested in late April 2015 and charged with possession of ketamine for the purpose of trafficking and possessing proceeds of crime. The appellant and his ex-wife were also charged with trafficking ketamine. The charges arose from Project Ice Castle, a York Regional Police Service investigation of ketamine labs in York Region. The appellant’s arrest followed the execution of a search warrant at his ex-wife’s condominium in Scarborough, during which police discovered 60 kilograms of ketamine.

[3] On May 13, 2015, the appellant was granted bail on those charges.

[4] On March 24, 2017, the appellant was again arrested. This time he was charged with producing ketamine and failing to comply with his recognizance. The charges arose from Project Apollo, an investigation by the Toronto Police Service into three ketamine labs in the Greater Toronto Area.

[5] With respect to the Project Ice Castle charges, the appellant brought an application to stay for an alleged violation of his right to a speedy trial under s. 11(b) of the Canadian Charter of Rights and Freedoms. On May 17, 2017, the trial judge dismissed the application for a stay.

[6] After his s. 11(b) application was dismissed, the appellant resolved both sets of charges by pleading guilty. He pleaded guilty to one charge from Project Ice Castle, possession of ketamine for the purpose of trafficking, on August 1, 2017 and to the Project Apollo charges on September 25, 2017.

[7] After a sentencing hearing, the trial judge sentenced the appellant to seven and one-half years on the Project Ice Castle charge, to seven and one-half years consecutive on the Project Apollo charge, and to six months consecutive on the breach of recognizance charge, for a total sentence of 15 ½ years. The appellant was given 447 days of credit for pre-sentence custody leaving slightly more than 14 years to serve.

The conviction appeal

[8] The appellant seeks to appeal his conviction on the Project Ice Castle charge through a challenge to the dismissal of his application for a stay under s. 11(b). However, in order to advance that challenge, the appellant must first have this court set aside his guilty plea. This situation arises because the appellant did not follow the procedure outlined in R. v. Fegan (1993), 1993 CanLII 8607 (ON CA), 13 O.R. (3d) 88 (C.A.).

[9] In Fegan, Finlayson J.A. held that the proper procedure to be followed, where an accused person wishes to resolve the charges but maintain the right to appeal an interlocutory or pre-trial ruling, was for the accused person to plead not guilty but, at the same time, not to contest the facts underlying the Crown’s case. This could be done through an agreed statement of facts, or, less formally, through the accused person simply making sufficient factual admissions as to satisfy the essential elements of the offence.

[10] The appellant contends that this procedure was not explained to him by either of his counsel. The appellant had two lawyers at the relevant times. The appellant said that he could no longer afford his first lawyer after the s. 11(b) ruling was made. He retained the second lawyer, who was his lawyer at the time that the guilty plea was entered. The appellant says that neither of his lawyers told him about the Fegan procedure or of the consequences of simply pleading guilty. The appellant says that it was always his intent to appeal the dismissal of his application for a stay and that he entered his guilty pleas based on his understanding that he would still be able to appeal that dismissal.

[11] In order for a guilty plea to be valid, it must be “voluntary, unequivocal and informed”: R. v. Faulkner, 2018 ONCA 174, 407 C.R.R. (2d) 59, at para. 84. In dismissing the conviction appeal, we did not accept that the appellant’s guilty plea in this case was not a valid one, as that term is defined. We did not accept the appellant’s contention that he always wished to appeal the s. 11(b) decision. To the contrary, from the record before us, it was apparent that the appellant had two principal objectives in pleading guilty. One was to extricate his ex-wife and son from the criminal charges that they faced. It was part of the guilty plea agreement that the Crown would withdraw the charges against the appellant’s ex-wife and son. The other was for the appellant to obtain the lowest sentence. Indeed, the appellant instructed his lawyer to try to get a sentence of eight years, after he rejected the Crown’s proposed joint submission of 14 years.

[12] We were reinforced in our conclusion on this point by the very detailed plea inquiry that the appellant’s lawyer undertook with the appellant prior to the entering of his plea. In the course of that plea inquiry, and as reflected in his handwritten notes, the appellant’s lawyer confirmed the following:

You understand you are waiving your right to advance any other argument for Charter relief including any alleged violations of your rights under ss. 7, 8, 9, 10, 11(b) of the Charter: Yes.

You understand that while you may very well be entitled to appeal any sentence ordered against you and subject to the arguments that may be made by your appeal counsel, you will almost certainly not be allowed to appeal your plea of guilty to the charges as discussed: Yes.

[13] The appellant’s counsel, who was involved at the time of the guilty plea, was cross-examined for the purposes of this hearing. He was asked about the plea inquiry as it related to the appellant’s stated desire to appeal the s. 11(b) ruling. In response, the lawyer said:

A. You’re right. To my recollection, the idea of appealing section 11(b) or any other judgment that may have been handed down when previous counsel represented him was never raised with me at all.

[14] The appellant acknowledges that he did not raise this issue with his lawyer at the time of the plea. His current counsel’s suggestion that the appellant did not do so because the appellant would not know enough to do so, is an unpersuasive one. As the above notes reflect, the appellant was twice asked expressly about matters relating to s. 11(b), and being able to appeal his guilty plea, and yet neither of those instances caused him to question his lawyer about what he now says was his ongoing desire to appeal the s. 11(b) ruling. If those appeal rights were at the forefront of his mind at the time, it is incomprehensible that he would not have said something to his counsel about them.

[15] The appellant was represented throughout these events by capable counsel. We did not accept that his guilty plea was not informed and unequivocal. Even if the appellant harboured a continuing desire to appeal the adverse s. 11(b) ruling, he did not communicate that fact to either of his lawyers so that they could provide proper advice to him. It is simply too late now for him to try to do so. It is, after all, the principle of finality that underlies the general reluctance to set aside guilty pleas.

[16] Since we were not prepared to set aside his guilty plea, the appellant could not get to his challenge of the s. 11(b) decision.

The sentence appeal

[17] The appellant seeks leave to appeal the 15 ½ year sentence imposed on him. He submits that a sentence of nine years would have been more appropriate.

[18] Sentencing decisions are entitled to deference from appellate courts. Appellate courts are only entitled to intervene if the sentencing judge has committed “an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor” and such error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. An appellate court may also intervene if the sentence the trial judge imposed is demonstrably unfit: Lacasse, at para. 51.

[19] Both of these routes for intervention are applicable in this case. First, the sentences in this case were demonstrably unfit. The appellant was a 51-year-old first offender who pleaded guilty. While the sentencing judge acknowledged that those facts were “significant” mitigating factors, she does not appear to have factored those mitigating factors into the ultimate sentence that she imposed. The imposition of a 15 ½ year sentence on a first offender who pleaded guilty amply demonstrates that failure.

[20] In addition, the sentences imposed reflect errors in principle, namely, the principles of parity and proportionality. On this point, the sentencing judge referred to a number of sentencing decisions in the course of her sentencing reasons, the majority of which had imposed sentences ranging between five and eight years on similar offenders. Yet, the sentencing judge determined that sentences of 10 years on the two sets of drug charges (prior to reductions under the totality principle) were appropriate, without explaining how she came to that number.

[21] One of the decisions to which the sentencing judge made reference might be seen as driving her conclusion on sentence, namely, R. v. Ling, 2014 ONCA 808, 328 O.A.C. 210. However, that decision is distinguishable on its facts.

[22] In Ling, the accused were involved with three different drugs: MDMA, ketamine, and methamphetamine. Methamphetamine is recognized as a much more serious drug than ketamine or MDMA. In noting that, I do not mean to diminish the seriousness of any of these drugs or the illicit purposes to which they can be put. The accused were also convicted of both possessing each of these drugs for trafficking and producing each of these drugs. Further, some of the pills that were found were packaged as MDMA but, in fact, contained methamphetamine and thus represented a serious risk to the ultimate consumer. Yet further, the evidence was that the accused were involved in one of the two largest ecstasy laboratories that the police had discovered in Canada. Mr. Ling received a sentence of 16 years (one more year than the appellant on the drug charges) and the other two accused received sentences of 14 years (a year less than the appellant).

[23] I contrast the decision in Ling with the decision in R. v. Wu, 2017 ONCA 620, another case to which the sentencing judge was referred. In Wu, the accused was convicted of three counts of possession for the purpose of trafficking. He had been acquitted on counts accusing him of production. The evidence was that the accused had possession of 150 kilograms of MDMA, ketamine, and methamphetamine (two and one-half times as much as the appellant). Mr. Wu was sentenced to eight years. The Crown sought leave to appeal the sentence and submitted that a sentence of 12 years was appropriate. The Crown’s sentence appeal was dismissed.

[24] Before concluding on this issue, I will mention one other case to which the sentencing judge made reference: R. v. Kwok, 2015 BCCA 34, 320 C.C.C. (3d) 212. This case is particularly helpful as it deals with ketamine alone, that is, not in conjunction with other drugs. In that case, the three accused had imported 1,000 kilograms of ketamine into Canada. The sentencing judge had sentenced the two principal accused to 16 years for importation and 12 years concurrent for possession for the purpose of trafficking after a trial. On appeal, the British Columbia Court of Appeal reduced those sentences to 12 years for importing and eight years for possession for the purpose of trafficking. As the court noted, at para. 112, “[i]mporting drugs into Canada is more serious on the scale of culpability than trafficking drugs”.

[25] Thus, with the exception of Ling, none of the cases to which the sentencing judge made reference would have suggested that a sentence of 10 years on these drug offences was appropriate and, yet, that is the sentence that the judge arrived at without, as I have said, explaining why she concluded that that was the appropriate sentence.

[26] In concluding as she did, the sentencing judge failed to impose sentences that were proportionate, as that principle is enunciated in s. 718.1 of the Criminal Code. The failure to proper apply the principle of proportionality can lead to a sentence that is demonstrably unfit. This point is made in Lacasse, where Wagner J. said, at para. 53:

A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.

[27] A review of the cases would suggest that a sentence of between five and eight years would normally be imposed for possession for the purpose of trafficking in ketamine with a slightly higher range, perhaps six to ten years, for production of ketamine. In setting out this range, I am cognizant of the caution in Lacasse, at para. 60, that “sentencing ranges are primarily guidelines, and not hard and fast rules”.

[28] A final complaint raised by the appellant about the sentences relates to the sentence imposed on the conviction for the appellant’s failure to comply with his recognizance. The sentencing judge imposed a sentence of six months on this conviction, consecutive to the sentences that she had imposed on the drug offences. The appellant complains that this amounted to double counting, or double punishment, because the sentencing judge had used the fact that the appellant had been on a recognizance at the time as an aggravating factor for sentencing purposes on the second set of drug charges. The respondent disagrees and says that the sentence on the breach of recognizance charge, and its use as an aggravating factor on the drug sentences, represents two different legally protected interests.

[29] The proper approach to this issue depends on the factual foundation for the breach of recognizance charge. Where the facts underlying that charge are separate and distinct from the related charges, for example, a breach of a non-contact provision, it may well be that there are two different legally protected interests in play that would dictate separate and distinct sentences. That is not this case, however. In this case, the basis for the breach of recognizance charge, as expressed by the trial judge, was:

In any event, there’s no issues that he had these conditions restricting him from possessing and consuming drugs and not to possess scales, growing equipment, drug paraphernalia, chemical precursors, lab precursors, lab equipment.

[30] It will be seen that the factual basis for the breach of recognizance conviction was also the factual basis for the drug convictions. In those circumstances, there is an element of double punishment by using the facts as an aggravating factor on the drug offences and then using those same facts as warranting a consecutive sentence on the breach of recognizance conviction. The simplest way of avoiding that double impact is to make the breach of recognizance sentence concurrent to the drug sentences.

[31] In the end result, I would grant leave to appeal sentence and reduce the sentence in the following manner: on the York Region (Project Ice Castle) conviction, that is, the possession for the purpose of trafficking conviction, I consider the appropriate sentence to be six years, to reflect the particular aggravating factor of the quantity of drugs of which the appellant had possession. On the Toronto (Project Apollo) conviction, that is, the production charge, I consider the appropriate sentence to be eight years, reflecting the fact that production is a more serious offence than possession. Further, the sentences on the two sets of drug offences should be consecutive as they involve different criminal conduct committed at different times.

[32] However, a total sentence on the drug convictions of 14 years is still not proportionate for a first offender who pleaded guilty. I consider a sentence of 10 years to be the highest that could be justified, given the appellant’s circumstances and the circumstances surrounding the convictions. In order to achieve that sentence, I would reduce the sentences to five years consecutive on both sets of drug convictions to reflect the proportionality principle. Finally, I would make the sentence of six months on the failure to comply with recognizance conviction concurrent to the other sentences thus making the total sentence one of 10 years.

[33] The appellant is still entitled to the same credit for pre-sentence custody of 447 days as determined by the sentencing judge. Also, all of the other ancillary orders remain.

[34] Accordingly, I would grant leave to appeal sentence and reduce the sentences in accordance with these reasons. The conviction appeal is dismissed.

Released: December 4, 2020 "GH"

"I.V.B. Nordheimer J.A." "I agree. Grant Huscroft J.A." "I agree. B.W. Miller J.A."