Court Information
Court: Ontario Court of Justice
Date: November 10, 2017
Court File No.: Central East - Newmarket 4911-998-16-03486-02
Before: Justice M.E. Misener
Parties
Her Majesty the Queen
— AND —
Xiangming Lin
Counsel
For the Crown: Kathleen Healey and Kerry Benzakein
For the Accused: Marco Forte
Reasons for Sentence
Overview of the Offences
[1] Mr. Lin was arrested in April 2015 as part of an investigation known as Project Ice Castle which focussed on the production and distribution of ketamine in York Region. Mr. Lin was not the target of the project. The project began in late 2014. Mr. Lin came to the attention of the police in March 2015. He was believed to be receiving large amounts of ketamine for trafficking from the producers. When search warrants were executed, the police discovered a total of 70 kilograms of ketamine, 60 of which were found in Mr. Lin's possession. Mr. Lin was charged with trafficking in ketamine, possession of ketamine for the purpose of trafficking and proceeds of crime. He was released on bail in May 2015.
[2] In the fall of 2016, while awaiting trial in York Region, Mr. Lin came to the attention of drug investigators in Toronto who were targeting ketamine production in an investigation known as Project Apollo. Mr. Lin was never the target of Project Apollo. Investigators in Project Apollo uncovered three active drug laboratories. Through surveillance, Mr. Lin was associated to all three. When search warrants were executed, Mr. Lin was not found in possession of any finished ketamine. Thirty-two kilograms of a powdered substance which constituted an intermediate step in the production of ketamine were found in the trunk of his car and filters, paintbrushes and Pyrex dishes coated in ketamine residue were found in his residence. More than 4 kilograms of ketamine, 315 grams of methamphetamine and 1 kilogram of cocaine were found in the residence of another target of Project Apollo, Wei Gao. Mr. Gao had been seen at Mr. Lin's residence eight times in the two weeks preceding the takedown.
[3] Mr. Lin set a trial date for the Project Ice Castle charges. After an unsuccessful Section 11(b) application, Mr. Lin pleaded guilty to possession of ketamine for the purpose of trafficking. At that time he waived in his charges stemming from Project Apollo for a global resolution and pleaded guilty to production of ketamine and failure to comply with his recognizance.
The Agreed Facts
A. York Region Charges: Project Ice Castle
[4] Project Ice Castle focused on a synthetic drug lab in a home in a Markham suburb. Mr. Lin was not the target of the project. The theory of the police was that the lab was being operated by Zhi Xin Lin (no relation) and Lina Sun.
[5] Mr. Lin came to the attention of the police when they were tracking the movements of the alleged producers, Mr. Zhi Xin Lin and Ms Sun.
[6] On March 23, 2015, the police observed Zhi Xin Lin travel to a condominium unit at Corporate Drive in Scarborough. He wheeled a large suitcase into the unit and departed shortly thereafter with the same suitcase, which appeared to be lighter. Further investigation revealed that Mr. Xiangming Lin's ex-wife and adult son resided in that condominium and that Mr. Lin frequented it, sometimes staying overnight. A tracking device installed on Lina Sun's vehicle on March 25th revealed that she travelled to the Corporate Drive condominium and stayed there for 29 minutes on March 26.
[7] On April 6, 2015, surveillance officers observed Mr. Lin and his ex-wife entering the condominium pulling suitcases and carrying distinctive bags. When a search warrant was executed at the condominium on April 23, 2015, 60 kilograms of ketamine were found in those bags and suitcases. Police also discovered a large supply of plastic baggies, a vacuum sealer, a scale, a money counter, $77,226 in cash and a key to a safety deposit box in the name of Mr. Lin's ex-wife. The safety deposit box contained $220,450 in cash.
[8] Analysis of phones seized in the project takedown showed over 300 contacts between Mr. Zhi Xin Lin and Mr. Lin.
[9] A further 10 kilograms of ketamine and almost 90k in cash were found in Mr. Zhi Xin Lin's bedroom.
[10] Thousands of kilograms and thousands of litres of precursor chemicals were found at 5 Castle Court and at storage facilities in York Region.
[11] Mr. Lin admits that he used his ex-wife's condominium to received and store ketamine and that on April 23, 2015 he possessed 60 kilos of ketamine for the purpose of trafficking. He admits that the cash found in the safety deposit box was derived from trafficking in ketamine.
[12] Mr. Lin was released on bail with conditions while he awaited trial in York Region.
B. The Toronto Charges
[13] While out on bail, Mr. Lin was involved in the production of ketamine in Toronto.
[14] Toronto Police were conducting surveillance in Project Apollo, a separate investigation which also targeted ketamine production. The target of that investigation was Jian Wei Sun, who was believed to be operating a clandestine drug lab at 80 Colville Road, a garage in an industrial area of Toronto. Surveillance in that project began in October 2016 and Mr. Lin was observed early on meeting with Mr. Sun. From December 2016 until search warrants were executed in March 2017, Mr. Lin was observed repeatedly at the 80 Colville clandestine drug lab. When the police entered the Colville lab in March 2017 they found a large-scale ketamine production facility with barrels of chemicals used in the production of ketamine and at least 25 buckets of active reactions in which ketamine was in various stages of production. They also discovered chemicals used in the production of methamphetamine. Mr. Lin admits that he produced ketamine at 80 Colville Road.
[15] Mr. Lin also admits to producing ketamine at a second clandestine drug lab located in the garage of the home occupied by Mr. Sun. That home is located in a residential area of Toronto. Mr. Lin was seen regularly attending there during the period from November 2016 to March 2017 when search warrants were executed. He frequently carried large boxes to and from his vehicle into the home. Officers found an active ketamine laboratory with multiple reactions in progress and substantial quantities of precursor chemicals in Mr. Sun's garage.
[16] Further, Mr. Lin admits to producing ketamine at a third clandestine lab located in the garage of a home in a residential area of Toronto. On March 21, 2017, Mr. Lin was seen loading items into a refrigerated truck at Mr. Sun's residence. He followed the truck in his own vehicle to a residence on Plum Brook Crescent where he was seen unloading large boxes. On March 27, 2017, police found an active drug laboratory at that address with multiple active reactions in progress and barrels of precursor chemicals.
[17] Wei Gao was another target in Project Apollo. Mr. Gao was seen at Mr. Lin's address 8 times between March 10 and March 22, 2017. Mr. Lin was observed on many occasions at the Colville Road lab during this same period. Mr. Lin admits that he transferred ketamine to Wei Gao during this period. The police found 4 kilograms of ketamine, 315 grams of methamphetamine, 1 kilogram of cocaine, $70,000 CDN and $17,000 USD.
[18] When Mr. Lin was arrested the police found 32 kilograms of a powdered substance which constituted an intermediate step in the production of ketamine in his car and filters, paintbrushes and Pyrex dishes coated in ketamine residue in his residence.
Involvement in the Production of Methamphetamines
[19] The Crown sought to prove that Mr. Lin was aware of or at least wilfully blind to the production of methamphetamines at 80 Colville Road, seeking to rely on involvement with highly dangerous and addictive substances as an aggravating factor on sentence pursuant to Section 725 of the Criminal Code.
[20] When search warrants were executed at 80 Colville Road the police found ephedrine packages and iodine. Ephedrine and iodine are not used in the production of ketamine but are used for the production of methamphetamines. Methamphetamines were found at 80 Colville. The Crown adduced expert opinion evidence at the sentencing hearing explaining a possible production method for methamphetamines based on the evidence seized at Colville Road although a phosphorous agent is required and no such agent was found. Mr. Gao was found in possession of methamphetamines upon his arrest.
[21] Mr. Gao met with Mr. Lin several times shortly before his arrest and this was a time during which Mr. Lin was often seen at Colville Road. Furthermore, the police continued 24-hour camera surveillance during the weeks preceding the execution of search warrants and no one was seen at the Colville garage after Mr. Lin was seen there.
[22] Involvement in methamphetamine production, if established, is an aggravating factor because methamphetamine is recognized as a more serious drug than ketamine due to its highly addictive nature.
[23] The Crown is not able to prove by direct evidence that Mr. Lin knew or was at least wilfully blind to the production of methamphetamine at Colville Road and relies on circumstantial evidence that Mr. Lin was producing ketamine in that garage, that precursors to methamphetamine were obvious to anyone inside and from Mr. Lin's association to Mr. Gao.
[24] While I am highly suspicious, I am not satisfied that Mr. Lin knew or was wilfully blind to the production of methamphetamines at Colville Road. The presence of the ephedrine packages and iodine is indicative of that production having gone on inside the Colville Road location. However, the Health Canada scientist who attended that lab testified that he recalls the location had separate rooms. He testified that he believed the ephedrine was found inside the larger room but he was not able to say whether or not the boxes in which the blister packs were found was open or closed when the police first entered. I cannot safely find that the ephedrine and iodine were obvious to anyone inside 80 Colville. I cannot infer from the meeting between Mr. Lin and Mr. Gao that Mr. Lin was supplying methamphetamines as opposed to the ketamine which he admits having transferred. There is no evidence as to when, if ever, methamphetamine production occurred at Colville Road. Although the evidence establishes that no one entered the Colville address before the takedown date after Mr. Lin was seen there, the evidence does not establish when drug production began at Colville Road or whether Mr. Lin was involved at the outset. Accordingly I am not satisfied that Mr. Lin had involvement in, knowledge of, or even reason to suspect that methamphetamine production was occurring at the Colville Road lab.
The Dangers Associated with Illegal Ketamine Use
[25] A forensic toxicologist, Dr. Karen Woodall, was qualified to provide her opinion concerning the uses and effects of ketamine in our community. Ketamine is a dissociative anesthetic. It is commercially available as a veterinary anesthetic and is used by emergency personnel in hospitals. Because of its dissociative effects it is highly effective in pain control. However, it has hallucinogenic and psychedelic effects. As a result its legitimate use by medical personnel in humans is limited. These effects, which include intense hallucinations and out-of body experiences, make it attractive to recreational drug users.
[26] Dr. Woodall testified that ketamine is often used in powder form and that doses of 20 to 50 mg induce mild hallucinogenic effects, with effects increasing as dosage goes up. She testified that more than 50 mg would be considered a high dose. Ketamine can cause death by excessive dosage.
[27] Dr. Woodall indicated that ketamine has a high incidence of direct side effects which may include anxiety, delirium, psychosis, dizziness, vomiting, seizures and in extreme circumstances death. In addition, ketamine can induce aggression and its dissociative features can lead to serious injury when users engage in highly dangerous activity.
[28] Abuse of ketamine can have serious adverse effects including bladder, urinary tract and kidney damage and impairment of short and long-term memory.
[29] Ketamine is known as a date-rape drug. The extent to which ketamine is involved in sexual offending is unclear because the drug is eliminated very quickly from the system. The rapid elimination rate along with its effect on perception and memory make it a dangerously effective facilitator of sexual assault.
[30] As with all illicit substances, unregulated production leads to the danger of ketamine being mixed with other substances which are unknown to the user. Furthermore, ketamine is often knowingly mixed with alcohol and other drugs, increasing its adverse effects.
[31] While specific case reports indicate the possibility of some users developing dependence, no wide scale studies have been conducted to determine its addictive qualities. Ketamine does not appear to be physically addictive.
Mr. Lin's Background
[32] Mr. Lin's background is set out in a presentence report. He is the third of five siblings who grew up in a close-knit family in a poor rural area of the Fujian Province in China. He was married in 1990 and has one son who was born in 1992. Mr. Lin has remained in close contact with his family in China.
[33] Mr. Lin came to Canada from China in 1998 and sponsored his wife and son who joined him here in 2001. He and his wife divorced in 2003. Mr. Lin's son is now married and has a new baby.
[34] Mr. Lin testified that prior to his arrest on the York Region charges he was doing part-time work in home renovations. He does not use alcohol or drugs. He socializes with other immigrants from the Fujian Province.
[35] Mr. Lin testified that after his release on bail in York Region he turned to ketamine production in Toronto because he had no money to pay for a lawyer and because he owed money to other people who expected to be paid as a result of the police seizing 60 kilos of ketamine and proceeds from him.
[36] Mr. Lin's son testified. He said that it was his understanding before his father's arrest that his father worked as a renovator. His father also did routine maintenance work for him at cafes which he managed. He said he didn't see his father that often after his parents separated in 2004 or 2005 but that whenever he saw his father Mr. Lin was driving a modest car. Mr. Lin's son testified that his father and mother lent him money to help him acquire a share in three locations of a bubble tea chain. Mr. Lin's brother and brother-in-law, who live in China, wrote letters describing Mr. Lin as a law-abiding, respectful and peaceful person who is very remorseful. I also learned that Mr. Lin's mother, who also lives in China, is very ill and that Mr. Lin keeps in touch with his family concerning his mother's health and care. Mr. Lin's son has an 8 ½ month-old baby born while Mr. Lin was in pretrial custody.
Crown Position on Sentence
[37] The Crown submits that an appropriate sentence is one of 18 years' incarceration. The position of the Crown is that the York Region charge and the Toronto charges each should attract a sentence in the low double digits having regard to Mr. Lin's involvement and the amount of ketamine he possessed. The Crown submits that a fair application of the principle of totality results in a global sentence of 18 years.
Defence Position on Sentence
[38] The defence position is that an appropriate sentence is one of 5 years for the Toronto charges, 3 years for the York Region charge and 6 months consecutive for the failure to comply, resulting in a global sentence of 8 1/2 years. The defence submits that Mr. Lin should be credited for his time in pretrial detention at the rate of 1.5:1 in general with enhanced credit of 2:1 for the periods he spent in lockdown and credit pursuant to R. v. Downes, 79 O.R. (3d) 321, for the period of time he was under house arrest.
Sentencing Principles and Their Application
[39] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must also consider the principle of parity which mandates that similar offences committed by similar offenders should attract similar sentences.
[40] It is well established that deterrence and denunciation are the paramount objectives in sentencing drug producers and traffickers. The reason is obvious: trafficking is a crime of calculation. These offences are not spontaneous or emotionally-charged actions. They are the result of calculated decisions taken after an assessment of the potential rewards weighed against the risks.
[41] Deterrence and denunciation are the primary objectives in sentencing offenders involved in trafficking and production of Schedule I substances because of the enormous harm these substances do to the community.
[42] An offender's prospects for rehabilitation must also be considered: the protection of the public is advanced not only by sending a deterrent and denunciatory message to other potential offenders but also by supporting an offender's prospects for future law-abiding behaviour. Rehabilitation is a particularly important consideration in sentencing a first offender.
[43] The principle of restraint is also particularly important for first offenders. That principle dictates that I should impose the lowest amount of incarceration as is necessary to meet the applicable sentencing objectives.
[44] Arriving at a fit sentence requires weighing the mitigating and aggravating factors in the context of other cases involving similar offenders involved in similar offences.
Aggravating Factors
A. York Region Charges
[45] Mr. Lin admits that he possessed 60 kilograms of ketamine for the purpose of trafficking.
[46] The nature of the substance is an aggravating factor. Ketamine is a Schedule I substance.
[47] In sentencing producers and traffickers of Schedule I substances, Courts consider the relative level of dangerousness of the particular substance, including its prevalence in the community and the degree of harm caused by its abuse, including secondary impacts.
[48] The level of addictive risk associated with use of the substance obviously is an important consideration in assessing relative dangerousness. The impact of addictive drugs cannot be overstated. The addict's life is destroyed. His or her family is torn apart. The community suffers the violence and secondary crime caused by addiction.
[49] The extent of ketamine dependence is unknown due to a lack of wide-scale studies. What is clear is that unlike other Schedule I substances, ketamine is not highly addictive. It may be psychologically addictive in some users.
[50] The defence submits that sentences for ketamine offences ought to be at the lowest end of the appropriate range for Schedule I substances because ketamine is not as dangerous as other substances such as heroin, cocaine, methamphetamines and fentanyl listed in Schedule I. While the defence acknowledges that ketamine is used to facilitate the commission of sexual assault and has been found as a factor in serious impaired driving investigations, counsel points out that alcohol has had a vastly greater role to play in the commission of both those offences.
[51] I accept that ketamine is not as dangerous as highly addictive substances such as fentanyl and methamphetamines which are also found in Schedule I. Unlike those substances it is possible to use ketamine recreationally without becoming addicted.
[52] However, while the relative addictive nature of a substance is a very important consideration it is not the only factor in assessing the danger which a substance poses.
[53] Parliament saw fit to move ketamine to Schedule I and the Courts, including the Ontario Court of Appeal in R. v. Ling, 2014 ONCA 808, have recognized that it is dangerous.
[54] Like ecstasy, ketamine is a party drug targeted at young people. According to the evidence of Dr. Woodall, side effects include anxiety, delirium, psychosis, dizziness, vomiting and seizures. It can be deadly. Its dissociative features can cause users to engage in unsafe activities. Users often deliberately mix ketamine with alcohol and other drugs increasing the risks. Furthermore, the very fact that illicit production is unregulated increases its danger. As can be seen from other reported cases, substances can be mixed into the ultimate product leading to unintended consumption of more dangerous substances. Chronic use can lead to organ damage and deficiencies.
[55] A particular concern about ketamine is its use to facilitate undetected sexual assaults.
[56] For these reasons, while the nature of the substance is not extremely aggravating as it would be in a case involving fentanyl for example, or even highly aggravating as in a case involving heroin or methamphetamines, it is an aggravating factor that Mr. Lin possessed a substance with the dangerous characteristics of ketamine.
[57] The most aggravating feature of this offence is the quantity of ketamine found in Mr. Lin's possession. He admits being in possession of 60 kilograms.
[58] I heard evidence from Dr. Woodall that a typical dose of ketamine used for non-medical purposes is 20-50 mg. As the prosecution pointed out in submissions, using the most conservative math in favour of Mr. Lin which is to say assuming that the ketamine he possessed would be consumed in the largest ordinary dose of 50 mg, he was in possession of 1.2 million doses. Divided into 20 mg doses the figure rises to 3 million. Whether or not the dosage estimate is accurate, it is clear that the dosage of ketamine is small so that 60 kilos is a very significant quantity.
[59] The scale of the ketamine production involved in Project Ice Castle is also an aggravating factor. While Mr. Lin's involvement is of a short duration he possessed a very large quantity of product which he obtained directly from a large-scale producer.
[60] Another important consideration is Mr. Lin's role in the Ice Castle ketamine production.
[61] The defence takes issue with the Crowns' characterization of Mr. Lin's role as a central one. Mr. Lin was not the target of the investigation and he was not a producer. His known involvement is limited to a very short period of about a month in March 2015 whereas his co-accused Mr. Zhi Xin Lin admitted to being involved in ketamine production for two years.
[62] The defence takes the position that the evidence establishes no more than that Mr. Lin was operating a stash house in the condominium for a short period of time and that there is no evidence that he was involved beyond holding the ketamine and proceeds for others. Once Mr. Zhi Xin Lin and Ms. Sun were seen making what appeared to be a delivery to Mr. Lin, Mr. Lin came under surveillance. There was no unusual trafficking observed in and out of his premises thereafter.
[63] I disagree that the evidence falls short of establishing beyond a reasonable doubt that Mr. Lin was involved as a high level trafficker. The presence of baggies, scales and a money counter in the condominium indicate that Mr. Lin was involved in packaging for distribution. Furthermore, Mr. Lin was not simply providing access to the condominium to others. Mr. Lin and his ex-wife were seen wheeling the large suitcases and distinctive bags, which later were found to contain ketamine, into the condominium. The sheer quantity of ketamine he received directly from the producer indicates that Mr. Lin was at the top of the trafficking web. He was found in possession of a significant amount of cash. He states that the proceeds were being held for others. I do not believe him. The bulk of the proceeds that were recovered in this investigation were found in a safety deposit box to which only Mr. Lin's ex-wife had access. Mr. Lin admits that the $220,450 found in that safety deposit box was derived from trafficking in ketamine. I appreciate that the execution of search warrants freezes a moment in time in an ongoing operation. Nevertheless I cannot disregard the fact that 6/7 of the product and ¾ of the cash discovered at takedown were in Mr. Lin's and his ex-wife's possession. I am satisfied beyond a reasonable doubt that Mr. Lin was not a passive holder of drugs and proceeds but rather was actively involved at a high level in trafficking in ketamine.
[64] In any event, in my view not a great deal turns on whether Mr. Lin was operating a stash house or trafficking. The level of culpability of a stash-house operator holding such a massive quantity of an illicit substance is very high. To be entrusted with such a large amount of product and cash, Mr. Lin would have to be at a high level of the organization. I agree with the observation of the Alberta Court of Appeal in R. v. Price, [2007] A.J. No. 794, "helping conceal the role of the trafficker from the police is a serious and essential part of the business."
[65] The location in which Mr. Lin possessed this enormous quantity of ketamine is also a highly aggravating feature. All of the residents of the condominium, including children, were put at risk of violence by the presence of this very valuable illicit substance.
[66] The fact that Mr. Lin was motivated solely by greed in possessing the ketamine is an aggravating factor.
B. Toronto Charges
[67] There are a number of aggravating factors in relation to the Toronto charges.
[68] Mr. Lin was involved in the production of ketamine in three clandestine drug labs. The fact that he was involved in more than one production lab is aggravating.
[69] The fact that two of those clandestine labs were in residential neighbourhoods is a highly aggravating factor because of the obvious dangers associated with storing substantial quantities of volatile chemicals and making chemical reactions with them. The risk of explosion and fire in clandestine drug labs is a very real one. There have been clandestine drug lab fires and explosions in the Greater Toronto Area. A review of reported cases reveals that it is as a result of chemical fires and explosions that these clandestine labs often come to the attention of the authorities. The labs also have a deleterious environmental impact. And they attract the criminal element to communities. Undoubtedly it is for these reasons that Section 7 of the CDSA specifies that the fact that production constituted a potential public safety hazard in a residential area should be taken into account in sentencing.
[70] The fact that the clandestine drug labs, particularly the one found at Colville Road, were large-scale operations capable of producing a very substantial quantity of drugs is another significant aggravating factor.
[71] Another aggravating feature of Mr. Lin's involvement in the Toronto drug labs is that he was on a stringent release in relation to ketamine charges in York Region at the time. Defence counsel submits that I cannot consider the fact that he was breaching a court order as an aggravating factor on the production sentence because Mr. Lin has pleaded guilty to failure to comply. To sentence him for that offence and also treat his bail status as an aggravating feature on the production charge would be to punish him twice for the same delict. The reality is that Mr. Lin was on bail on very serious ketamine trafficking charges in York Region when he became involved in ketamine production in three different labs in Toronto. In my view I am not engaging in double punishment in considering his status at the time he was producing ketamine as an aggravating factor provided that the focus in the sentence for failure to comply remains on the breaching of the court order. In determining a fit sentence on the production charge I decline to disabuse my mind of the fact that Mr. Lin was on a strict bail awaiting trial on serious ketamine charges when he repeatedly engaged in ketamine production. When I turn my mind to the appropriate sentence for the fail to comply I will focus on the delict of disobeying the Court.
[72] In terms of Mr. Lin's role in the ketamine production which was targeted in Project Apollo, the defence submits that he was only a peripheral actor working sporadically in the clandestine drug labs in order to pay off the debt he owed when 60 kilos of ketamine were seized by York Region police. The defence placed significant emphasis on the fact that the project never targeted Mr. Lin, who just happened to be seen meeting with one of the targets. I was urged to consider the police operation plan for the project to demonstrate that Mr. Lin was not on the radar at all.
[73] This same submission was made in respect of the York Region project. There too Mr. Lin was not a target and again he came to the attention of the police due to his association with people who were under police investigation.
[74] The operation plan for both projects is of no assistance to me in determining Mr. Lin's relative role in either ketamine production network. It reflects the information which the police had at a given time and is only as good as its sources. In this case, investigation revealed the facts which Mr. Lin has admitted in the agreed statements of fact and it is on those facts, along with any evidence I accept from the hearing, that I must sentence Mr. Lin.
[75] I am satisfied beyond a reasonable doubt that Mr. Lin was not a minor actor in the production of ketamine in Toronto. While Mr. Lin was not targeted in Project Apollo and was not found in possession of any finished product when the warrants were executed, he admits that he produced ketamine in three different clandestine drug labs between October 2016 and March 2017. He admits transferring ketamine to Wei Gao between March 10 and March 22. When search warrants were executed, Mr. Gao was found to be in possession of 4 kilos of ketamine and Mr. Lin had 32 kilograms of a powdered substance which constituted an intermediate step in the production of ketamine in the trunk of his car. Mr. Lin was observed by the police on multiple occasions inside the Colville Road lab while production appeared to be going on. The ketamine production at Colville Road was large-scale. Very significant quantities of chemicals were found as well as 25 buckets in various stages of production. Mr. Lin was involved in setting up the equipment as well as producing ketamine on site. During the surveillance Mr. Lin was seen moving boxes and bins at all three clandestine labs. His admissions and his observed conduct in relation to such a significant ketamine production operation are inconsistent with him being a peripheral player.
Mitigating Factors
[76] Mr. Lin pleaded guilty in respect of the York Region charge after I denied his application for a stay for unreasonable delay. He pleaded guilty to the Toronto charges at an early stage of those proceedings. In doing so he saved considerable court resources and took responsibility for his offences.
[77] Mr. Lin does not have a criminal record. The absence of a criminal record is a significant mitigating factor. Mr. Lin has lived for more than 50 years without coming into contact with the criminal justice system.
[78] The defence submits that Mr. Lin has excellent rehabilitative prospects. He has carpentry skills so that he can obtain honest work upon his release. He has a supportive family with a son and a newly born grandson. I have difficulty with the submission that Mr. Lin's prospects for change are great given that he abused the trust of his surety and violated the conditions of his bail so flagrantly. Furthermore, I struggle to see how a person who paints himself as a loving father and grandfather can choose to produce for profit a substance which so significantly endangers young people in our community.
[79] In respect of the Project Ice Castle charge, it is a mitigating factor that Mr. Lin's involvement was of limited duration.
Review of Other Sentencing Cases Involving Ketamine Production and Distribution
[80] Both counsel provided me with a number of helpful authorities, all of which I considered.
[81] The Ontario Court of Appeal decisions in R. v. Ling and R. v. Wu, 2017 ONCA 620, provide guidance. Ling involved the sentencing of a number of individuals who were involved in a sophisticated large-scale clandestine drug lab where MDMA, ketamine and methamphetamine powder was being pressed into pills. The three offenders were found guilty of possession for the purposes of trafficking and production. Madam Justice McWatt imposed the same concurrent sentences for each of the counts in relation to the MDMA, ketamine and methamphetamines. She sentenced Mr. Ling to 16 years for production and 10 for possession for the purpose of trafficking and the other accused to 14 years for production and 10 years for possession for the purpose of trafficking. Mr. Ling, who was 55 years old, had no criminal record. The offenders appealed on a number of grounds including that the sentences were overly severe having regard to the quantity and nature of the drugs involved. The Court of Appeal upheld the sentences. In doing so the Court stated that all three substances are dangerous and emphasized the massive scale of the production. The Court noted that "MDMA while less additive are still dangerous to human health".
[82] The companion case of R. v. Wu involved possession for the purpose of trafficking of a substantial quantity of MDMA, ketamine and methamphetamine produced in the same clandestine lab. In that case the Crown appealed the sentence of 8 years imposed by Madam Justice Thorburn. The Court of Appeal upheld the sentence noting that the trial judge considered all the aggravating and mitigating factors and applied the proper principles and that Mr. Wu was less involved in the operation than the accused in R. v. Ling.
[83] In R. v. Zhang, [2014] O.J. No. 2497, Madam Justice Garton imposed a sentence of 7½ years for production of MDMA, possession of MDMA for the purpose of trafficking and possession of ketamine for the purpose of trafficking. The case involved a large-scale pill production operation as well as MDMA production. Enough drugs were seized to amount to 108,000 doses. Mr. Zhang had a related record. At the time of his offences MDMA was listed in Schedule III.
[84] In respect of Project Ice Castle, Mr. Lin's co-accused Zhi Xin Lin pleaded guilty to production of ketamine and possession for the purpose of trafficking in June 2017. Zhi Xin Lin admitted to producing two to five kilograms of ketamine per month over a two-year period at the Castle Court address and to possessing 10 kilograms of ketamine and almost $90,000 in cash. Madam Justice Fuerst accepted a joint submission for a sentence of 10 years' incarceration.
[85] The British Columbia Court of Appeal considered sentences imposed for the importation and possession of ketamine for the purpose of trafficking in R. v. Kwok, 2015 BCCA 34. The case involved more than 1000 kilograms of ketamine. The trial judge imposed sentences of 16 years on Mr. Kwok and Mr. Ng and 10 years on Mr. Lau.
[86] The Court of Appeal considered the appropriate range for the importation of very large quantities of ketamine noting that the issue of range for substantial quantities of ketamine was a matter of first impression. The Court undertook a review of sentencing for importation of various drug offences, including other Schedule I substances and marijuana. The analysis begins with the Court identifying the relative dangerousness of ketamine:
Ketamine is a less dangerous drug than heroin or cocaine. It is perhaps closest to MDMA (or ecstasy), which is also a Schedule I drug. It appears to be more harmful to health than marihuana, a Schedule II drug.
[87] After reviewing sentencing decisions in respect of other drugs, the Court reduced the sentences to 12 years and 6 years, finding that the sentences imposed were closer to the range for importing cocaine which is more dangerous than ketamine.
[88] Defence counsel provided me with a number of sentencing cases in Ontario involving methamphetamines and MDMA (ecstasy), submitting that sentences for ketamine ought to be less than those for methamphetamines and on par with those imposed in MDMA cases given the relative seriousness of the substances involved.
[89] In R. v. Chui, [2015] O.J. No. 2202, Mr. Justice Clark imposed a sentence of 8 years for production of methamphetamine and 5 years for possession for the purpose of trafficking. In that case the accused came to the attention of the police when the clandestine methamphetamine lab he was operating caught fire.
[90] In R. v. Nguyen, [2011] O.J. No. 4771, Madam Justice McWatt sentenced a 20-year-old first offender for production of methamphetamines and arson by negligence after the clandestine meth lab he was operating caught fire. Mr. Nguyen suffered burns to 70 percent of his body in the fire. Her Honour found that while Mr. Nguyen was not the controlling mind behind the operation he was in control of the clandestine lab. She held that the appropriate range was 6 to 8 years but that the sentence should be reduced below that range due to Mr. Nguyen's rehabilitative prospects and imposed a sentence of 5 years for the production.
[91] In R. v. Phan, [2015] O.J. No. 4863, a youthful first offender was sentenced to a conditional sentence of two years less a day for possession of over 600 grams of ketamine for the purpose of trafficking. I do not find that case to be helpful. The offence is different insofar as it involves much less ketamine and the offender was a paraplegic.
[92] In R. v. Chibani, the offender was the mastermind in a scheme to export 57,000 ecstasy pills. He had a related record. He was sentenced to 6 years.
[93] In R. v. Pinch, 2012 ONSC 7539, Mr. Justice Hill sentenced an offender for conspiracy to export 90,000 ecstasy pills to 6 years imprisonment. In R. v. Tran, 2014 ONSC 4386, Mr. Tran was sentenced to 5 years 6 months and his co accused Mr. Lao to 10½ years for exporting 200,000 ecstasy pills to the United States. Mr. Tran was found to be closer to a mule while Mr. Lao was found to be a mid to high-level trafficker.
Sentences Imposed
[94] The maximum sentence for possession for the purpose of trafficking and production of ketamine is life imprisonment. There is a mandatory minimum sentence for production of three years.
[95] In respect of the York Region charge, I find that Mr. Lin has a very high level of moral blameworthiness. The quantity of drugs he received directly from the producer makes it clear that he was at the top of the distribution. He was a vital step in the distribution of an extremely large quantity of a hard drug ultimately targeted at young people.
[96] The relative non-addictive nature of ketamine compared to methamphetamines and opioids militates in favour of a sentence at the lower end of sentences imposed for Schedule I substances. On the other hand, the quantity of ketamine found in Mr. Lin's possession pushes the sentence higher.
[97] I must also consider that Mr. Zhi Xin Lin, the producer, was sentenced to 10 years imprisonment. Mr. Zhi Xin Lin admitted to producing for 2 years whereas there is no evidence that Mr. Lin was involved until the final month of the project. Furthermore, many cases distinguish between the producer and the trafficker and assign a higher degree of blameworthiness to the former. In this case I do not see a significant distinction between the blameworthiness of Mr. Zhi Xin Lin who produced the ketamine and Mr. Lin who received ketamine directly from the producer and was found in possession of the vast bulk of what was recovered by the police. In sentencing Zhi Xin Lin, Madam Justice Fuerst noted that Zhi Xin Lin told the police he had produced 2 to 5 kilograms of ketamine a month during the two years of production. In the case before me, Mr. Lin was found in possession of 60 kilograms. Mr. Lin is clearly a top-level trafficker in a very large amount of a dangerous substance which he intends to traffic for profit and which is targeted at young people.
[98] This offence requires a strong deterrent and denunciatory sentence. In my view the appropriate sentence is 10 years jail.
[99] The defence submission that Mr. Lin is less culpable on the York Region charges because he is not a producer has a boomerang effect on his Toronto charges. From October 2016 until March 2017, Mr. Lin was producing ketamine at three clandestine labs, two of which were in residential neighbourhoods. All the while he was awaiting trial on the York Region charges. The aggravating features are obvious and need not be repeated.
[100] An appropriate sentence is one of 10 years on the Toronto production charges.
[101] Turning to the failure to comply charge, Mr. Lin was released on a substantial bail: $200,000. He disobeyed the key conditions of his release, which were obviously aimed at preventing him from re-offending. The charges on which he was released were very serious. The breaches he committed are at the most serious end of the scale. On the other hand, Mr. Lin has no history of noncompliance with court orders. He has no record whatsoever. Taking into account the absence of any criminal history, the appropriate sentence is one of 6 months. The defence submitted that I cannot impose a sentence of incarceration for the failure to comply because I treated the fact that Mr. Lin was on bail as an aggravating factor in determining the sentence for the Toronto production charge. I am mindful that I must not impose a double punishment for the same criminal conduct. I am sentencing Mr. Lin to 6 months for disobeying the heart of a significant release on very significant charges. If I were also taking into account that Mr. Lin produced ketamine while breaching his bail the failure to comply sentence would be much more significant. Furthermore, I intend to reduce the global sentence having regard to the principle of totality.
Application of the Totality Principle
[102] The totality principle is set out in Section 718.2(c) as follows: where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. It seems to me that this principle is particularly significant when sentencing a first offender.
[103] Applying this principle I am reducing the sentence to one of 15 years and 6 months incarceration. The sentences, to be served consecutively, are as follows:
Possession of ketamine for the purposes of trafficking: 7 years and 6 months jail
Production of ketamine: 7 years and 6 months jail
Failure to Comply with recognizance: 6 months jail
Credit for Time on Strict Release Conditions
[104] The defence submits that Mr. Lin should be credited at a rate of 25% from May 13, 2015 to September 18, 2015 when his conditions were relaxed. Mr. Lin did not become involved in criminal activity until late in the following year. The Crown is opposed to any credit at all being given for time on pre-trial release given Mr. Lin's involvement in ketamine production while awaiting trial.
[105] The onus is on the defence to call evidence of the impact of strict bail conditions. The evidence establishes that while Mr. Lin was on house arrest he was unable to work as a carpenter, a trade in which he is trained. He was unable to work at his son's business. He was not permitted to have contact with his ex-wife and son until that condition was varied.
[106] In R. v. Downes, the Ontario Court of Appeal held that credit should be given for time spent on stringent bail conditions especially house arrest as they "represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration."
[107] While I agree with the Crown that it is difficult to give Mr. Lin any credit for being on a release which he so flagrantly breached, the evidence of his criminal involvement while on bail dates from the fall of 2016. He was on house arrest from May to September 2015 when his bail was varied to a curfew. I am not satisfied, in light of Mr. Lin's involvement in ketamine production, that once his release conditions were relaxed to a curfew the conditions impacted him in a deleterious way. But I am satisfied that he should be credited for the period of house arrest in 2015. Accordingly, I am going to credit Mr. Lin for the initial 4 months of his release at the rate of 25% for a credit of 1 month of custody.
Credit for Pretrial Custody
[108] Mr. Lin has been in custody since March 24, 2017, a period of 230 days. In addition he spent 14 days in custody on the York Region charges until he was released on bail. Of his total days in custody, 96 were spent in lockdown. Three further days were spent this week as a result of the matter being adjourned, causing considerable distress to Mr. Lin. In the particular circumstances I am crediting those three days as lockdown days. The Crown agrees that he should be credited on a 2:1 basis for the lockdown days and 1.5:1 for the remainder.
Total pre-trial custody: 245 days
Lockdown days 99 credited at 2:1: 198 days
Non lockdown days in pre-trial custody 146 credited at 1.5:1: 219 days
Downes credit: 30 days
Total pre-trial CREDIT: 447 days
Ancillary Orders
[109] There are DNA orders and Section 109 orders for life on both the trafficking and the production offences.
Released: November 10, 2017
Signed: Justice M.E. Misener