Court Information and Parties

Date: April 11, 2019

Information Number: 4811-998-17-15007882-00

Ontario Court of Justice

Her Majesty the Queen - v - Qu Chen

Reasons for Judgment

Before the Honourable Justice R. Maxwell

On April 11, 2019 at Toronto, Ontario

Appearances

A. Shachter / J. Streeter – Counsel for the Crown

C. Szpulak – Agent for the accused

Judgment

MAXWELL, J (Orally)

On February 1st, 2019, I found Mr. Chen guilty of possession of MDA and methamphetamine for the purpose of trafficking, unlawful production of MDA, and unlawful production of methamphetamine for the purpose of trafficking, contrary to s. 5(1), 7(1) and 7.1(1) of the Controlled Drugs and Substances Act.

On April 2nd, 2019, he appeared before me for a sentencing hearing.

Circumstances of the Offence

On June 23rd, 2016, police executed a search warrant on the accused's home address, 20 Kindy Street in Markham. Inside the basement of 20 Kindy Street, police located a methamphetamine laboratory. The cold cellar in the basement had been converted into a drying room.

Two long shelves which wrapped around the cold cellar were being used as drying racks. Police found a green substance drying on the entire length of one of the racks, and a yellow substance drying on the entire length of another. The substances were being dried by many oscillating fans which were positioned in various locations on the drying racks. There were numerous plastic containers containing various substances located on the racks.

A second makeshift drying room was located in one corner of the basement. It had two drying racks, one of which was covered in fine pink dust. It did not appear to be in use, but the residue had suggested it had been used in the past. Police located a pill press, 23 kilograms of finished methamphetamine, some mixed with MDMA, and a further 3.2 kilograms of MDA in the basement. The value of the MDA seized ranged from a low of $158,400, to a high of $360,000, depending on the weight at which it was sold. The value of the methamphetamine ranged from a low of $1.245 million dollars, to a high of $2.861 million dollars, again, depending on the weight at which it was sold. The accused was arrested the same day.

Positions of the Parties

Mr. Streeter, for the Crown, argues that the accused should be sentenced to a global sentence of 12 years in the penitentiary on the count of production of methamphetamine for the purpose of trafficking, less any credit for pre-sentence custody, and some consideration for time spent under strict bail conditions. He suggests a sentence of eight years, to run concurrently on the count of possession of methamphetamine for the purpose of trafficking. Finally, he suggests a shorter term of jail to run concurrently to each other, and to the sentences with respect to the methamphetamine, for the counts of production of MDA and possession of MDA for the purpose of trafficking. In addition, he seeks a s. 109 order for 10 years and a DNA order.

Ms. Szpulak submits that a sentence of four years concurrent on all counts is an appropriate sentence in the accused's particular circumstances. She argues that the Crown did not establish beyond a reasonable doubt that the accused was a leader or principal in the production of the methamphetamine or MDA and that, at most, he allowed others to use his home as a drying facility and a place to press pills. The Crown's position, she argues, is excessive. Moreover, Ms. Szpulak submits that a lengthy period of incarceration would be "crippling" to the accused, in his particular circumstances, as he would lose the ability to see his parents, his grandmother, and his fiancée while he is incarcerated, as they are in China. His fiancée has been waiting for over three years to proceed with their marriage and will have to continue to wait and postpone starting a family until he has completed his sentence and any period of parole.

The Circumstances of the Offender

The accused has no criminal record and is a first time offender. He was 34 years old at the time of the offence and is now 37 years old.

Numerous friends, family, and co-workers wrote letters in support of the accused for the sentencing hearing. Ms. Szpulak submitted 20 letters of support, all of which remarked that the accused is a hardworking, caring, family-oriented man. His involvement in illegal drug production was a surprise to his family and friends. This development has clearly put a strain on his family members who worry for his future, particularly, that he will not be able to return to China, get married, and rebuild his life until his prison sentence is completed.

The accused has made efforts to improve himself while these charges have been outstanding. He has continued to work at APA Auto Parts, and has completed a number of on-line courses, through a recognized on-line education service in China, accumulating more than 1,000 hours of education time, and obtaining ten certificates for various disciplines. He also completed a home-staging course at Seneca College.

As mentioned, since being charged three years ago, he has been unable to marry his long-time fiancée who is in China. Due to certain reproductive health issues his fiancée is experiencing, the likelihood of their being able to start a family is decreasing over time. She is unable to come to Canada and he cannot leave Canada until he has completed his sentence, and any applicable period of parole. He has also had limited contact with his parents, now both in their late 60's, and his 91-year old grandmother in China.

The accused expressed remorse for his actions, particularly in letting down his family and friends. The charges have already had a severe impact on his life. He has lost his legitimate businesses in China and South Korea and accumulated significant debt associated with the loss of the businesses and in defending himself against these charges.

The Sentencing Principles

I begin with the most fundamental principles of sentencing set out in s. 718, 718.1 and 718.2 of the Criminal Code. Section 10(1) of the Controlled Drugs and Substances Act articulates similar sentencing principles. The overriding purpose of sentencing is to encourage respect for the law and the maintenance of a just, peaceful and safe society.

Section 718.1 provides that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence I impose must reflect the circumstances of the offence and the attributes of the individual responsible for the crime.

Section 718.2 directs that a court must take into consideration the principal that a sentence should be increased or reduced for any relevant aggravating or mitigating factors related to the offence or the offender. Further, a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances. All available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders.

Sentencing ranges, and a review of similar cases, are useful in ensuring that the parity principal is met and that similar penalties are imposed for similar offences of a similar nature involving similar offenders. Sentencing ranges are, however, only guidelines.

The sentencing of an individual is necessarily an individualized process, as the Supreme Court reiterated in R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089.

Courts have consistently emphasized the need for deterrence, both specific and general, and denunciation in sentencing for offences involving illicit drug trades due to the well-recognized harm that drugs pose on our society and the financial draw presented by drug trafficking. R. v. Cunningham, [1996] OJ No 448 and R. v. C.N.H., 2002 62 O.R. (3d) 564.

Neither the crime of production nor possession of illicit substances for the purpose of trafficking are spontaneous crimes. They both require a degree of planning and assessing the costs and benefits of engaging in the illegal drug trade.

Further, and as Justice McWatt stated in R. v. Ling, 2012 ONSC 654, which was affirmed at 2014 ONCA 808, at paragraph 31, that because methamphetamine is not indigenous to Canada without producers there would be no methamphetamine problem in Canada.

As such, there is a basis to sanction producers of methamphetamine as seriously as those who import cocaine. Also, not indigenous to Canada.

Justice Clark made a similar finding in R. v. Chui, 2015 ONSC 2490 at paragraphs 19 and 50.

I agree with their conclusion that 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.

Finally, as with any sentencing, I must also be mindful of the principle of rehabilitation. For reasons I will discuss in greater detail, the accused does have strong prospects for rehabilitation as a first-time offender. However, given the nature of the offences in this case, I consider the predominant principles of sentencing applicable in this case to be deterrence, both specific and general, and denunciation.

Aggravating and Mitigating Factors

There are a number of aggravating circumstances in this case. First, there can be no question that both drugs the accused produced, but in particular the methamphetamine, are seriously addictive, pernicious drugs which have a devastating effect on the health, lives and communities they invade. The Ontario Court of Appeal remarked on the addictive and dangerous nature of methamphetamine in Ling, at paragraph 12.

Second, the amount of both methamphetamine and MDA located in the house was very substantial. As noted, police located 23 kilograms of methamphetamine and 3 kilograms of MDA in the basement. The total street value of the methamphetamine was between $1.2 and $2.8 million. The quantity alone is a significant aggravating factor and warrants a lengthy sentence. The effect that these drugs could have had, had they made their way into the community would have been devastating.

Third, I found that there was evidence of a laboratory having been used for production for some period of time based on the fact that a second drying station was located in the basement which had powder residue on it, and the presence of a variety of containers containing various pieces of equipment and supplies.

Finally, based on the findings I made in my decision on the trial, the accused played an integral role in the production of two serious, addictive drugs in substantial quantities. I found that the accused took an active part in the production of the drugs in the basement. If he did not play the principal role in setting up and using this laboratory, he at the very least permitted others to set up a methamphetamine lab in his home which he occupied and controlled. As the Ontario Court of Appeal noted in Ling, at paragraph 12:

Where a person occupies a trusted role within a group enterprise, his or her role is an important aggravating factor.

While it would certainly be more aggravating if the accused had been proven to be the leader or architect of this enterprise, it is nevertheless significant, and clearly established on the evidence that I heard and accepted at trial, that he was a trusted and vital part of an enterprise to produce the drugs. I point, in particular, to the fact that the accused secured a home and arranged to use his home to produce very significant amounts of methamphetamine and MDA. He exercised control over the property, thereby exercising control over the methamphetamine and MDA. Even assuming he was not a principal in this scheme, the role he did play constitutes a significant aggravating factor.

On the other hand, there are mitigating factors in this case as well. The accused comes before the court as a first-time offender.

Second, as evidenced by the many letters of support filed on the sentencing hearing, he has strong family and community support. He has otherwise led an exemplary life, working steadily and supporting his family in China. He enjoys a strong relationship with his immediate family, his fiancée, and friends.

Third, the accused's conduct while he has been on bail reflects a commitment to better himself. He has completed many online courses and a certificate course through Seneca College. I accept, based on the support letters he received and his efforts while he has been out on bail, that his involvement in these criminal activities is out of character for him.

Fourth, I accept the accused's expression of remorse to the court, both through his letter and in his comments to the court as genuine. I also accept his statement that he has learned from this experience and that he is committed to never committing criminal offences in the future.

The Case Law

Both counsel presented me with a number of cases for consideration. None of the offenders and offences in the cases provided to me is identical to the accused and his offences. However, I have reviewed these cases presented to me carefully and have found some to be helpful.

In Ling, Justice McWatt sentenced the offender, a first-time offender, to 16 years imprisonment. His co-accused, one of whom was also a first time offender and the other, who had a minor unrelated record, each received sentences of 14 years. They were found to have produced 175 kilograms of methamphetamine, and possessed MDMA and ketamine. The evidence established that this laboratory was one of the largest methamphetamine labs ever seen in Canada. The drugs had a street value of $12,000,000. The sentences were upheld on appeal.

In Chui, the offender was convicted after trial of production of methamphetamine, possession of methamphetamine for the purpose of trafficking, possession of pre-cursor chemicals, and arson by negligence. A fire broke out at a home he had leased. It was found to contain a clandestine methamphetamine laboratory. Police located 210 grams of methamphetamine, but the laboratory had a potential yield of over 5 kilograms. The offender was treated as a first-time offender. He was sentenced to eight years for the production offence, and five years concurrent on the count of possession of methamphetamine for the purpose of trafficking.

In R. v. Woo, 2014 OJ No. 4846 (ONSC), Justice Thorburn sentenced the offender, after trial, to eight years' imprisonment for possession for the purpose of trafficking MDMA, ketamine and methamphetamine. He was found not guilty of producing the drugs. Police seized substantial quantities of powder containing methamphetamine, ketamine and MDMA, and methamphetamine pills with a street value of between $763,000 if sold in bulk and $12,000,000 if sold individually. The offender had a prior related conviction and had only moderate prospects for rehabilitation. Justice Thorburn noted, at paragraph 24, that the range of sentence for possession for the purpose of trafficking methamphetamine is between six and twelve years in prison. The sentence of eight years was upheld on appeal.

In R. v. Bernard, 2012 ONSC 4009, the offender had no criminal record and was sentenced to seven years for possession for the purpose of trafficking three kilograms of methamphetamine. He was found to be a high-level commercial trafficker of cocaine.

In R. v. Chanmany, 2013 ONSC 5623, the offender also had no prior criminal record, but was found to be an "active wholesaler" of cocaine and methamphetamine. He was sentenced to nine years for possession for the purpose of trafficking seven kilograms of methamphetamine.

Mr. Streeter also directed me to R. v. Duncan, 2016 ONSC 1319, where Justice Code set out ranges of sentences for cocaine importation, distinguishing between first offender couriers and first offender principals to the importation. While I accept that there is an apt analogy to be drawn between the offences of importation and production, it is less clear, as the Crown acknowledges, whether a producer is analogous to a courier or a principal. As such, this case is of limited assistance, except to say that I agree with Mr. Streeter's submission that the accused's conduct in this case is something more culpable than a first-time "mere courier" who imports a kilogram or less of cocaine for personal gain, a category of offender that Justice Code identified in Duncan as falling in the range of sentence of three to five years.

For reasons I have noted above, I view the accused as having taken an active role in the enterprise. And while he did so while he was here in Canada on his own, he was not subject to the same vulnerabilities as offenders who, because of their youth, lack of sophistication, or lack of financial resources, act as drug couriers. That being said, because it is also not clear whether the accused played a leadership role in the enterprise, I would say that he is not within the range of sentences set out by Justice Code for first offender leaders or principals in large-scale importation cases. Using the analogy to importers, the accused's role as a producer in this case is somewhere in between that of a "mere courier" and a "leader".

Ms. Szpulak also provided a number of cases for my consideration. In R. v. Iverson, 2007 BCCA 3, the offender was sentenced to six years' imprisonment for possession for the purpose of trafficking methamphetamine and ecstasy, and production of methamphetamine and ecstasy. The street value of the methamphetamine was $1.2 million, and the ecstasy $2.9 million. The offender's sentence was varied to five years on appeal, on the basis that he was a first-time offender, he was a drug addict who agreed to live on the premises where the laboratory was located rent-free, and he did not realize any substantial profit. The court found that he was likely not the controlling mind behind the operation.

In R. v. Nguyen, [2011] OJ No. 4771 (ONSC), Justice McWatt sentenced the offender to five years imprisonment for producing methamphetamine of substantial value. The offender suffered severe burns to 70% of his body as a result of a fire which erupted in the clandestine lab. The court found he was not a controlling mind in the operation and that he had not, in fact, produced any methamphetamine, nor was he paid for his involvement. He was 20 years old, had no criminal record and pled guilty to the offence.

Finally, in R. v. Pham, [2016] OJ No. 6521 (ONSC), the offender was convicted of producing methamphetamine and possession of methamphetamine for the purpose of trafficking. He was sentenced to four and a half years' imprisonment. The trial judge found there was no evidence of the offender's role in the enterprise. There was evidence of other people being involved, and the offender was not the lessee of the property. Only 522.94 grams of finished methamphetamine were located in the lab, along with buckets of chemicals containing pre-cursors to methamphetamine. The offender had a criminal record.

Of the cases provided to me by both counsel, all are factually distinguishable from the case before me. I would note, however, that the case of Chui is instructive as it involves a first-time offender who was convicted of production of methamphetamine. The actual amount seized was substantially less in this case, but the laboratory itself had a much greater potential yield. The offender had a supportive family, like the accused. In both cases, neither was an addict or motivated by addiction. Both expressed remorse for their involvement. In both cases, the offender was the lessee of the premises containing the clandestine laboratory, and the only person found at, or associated to, the property at the relevant time.

The Appropriate Sentence

In my view, the four year sentence recommended by Ms. Szpulak, in the circumstances of this offence, does not adequately address the principles of denunciation and deterrence.

On the other hand, I also do not think the circumstances of this case, and the accused's circumstances, warrant a sentence in the range of 12 years on the production of methamphetamine for the purpose of trafficking, as the Crown suggests.

The sentence that best balances the need for denunciation and deterrence, with the accused's prospects for rehabilitation, the mitigating and aggravating factors, and that is proportionate to the gravity of the offence and the accused's degree of responsibility, is a term of imprisonment of eight years for the offence of production of methamphetamine for the purpose of trafficking, less credit for pre-sentence custody and credit for time spent under restrictive bail conditions.

The accused spent five days in pre-trial custody before being released on bail, which is the equivalent of eight days on an enhanced credit basis. He was on bail for 33 months, seven months of which he was subject to a house arrest, and 26 months under a curfew condition. The accused, in a letter submitted to the court, expressed that the time spent on curfew and house arrest has been particularly onerous on him because, unlike people who have family and friends available to them, even while on house arrest or curfew, his family members are all in China.

I would note, however, that the accused was granted variations to his bail which allowed him to travel and stay in China on three occasions during his time on bail. He was in China from February 8 to April 20th, 2017, approximately two and a half months; June 28th to September 10th, 2017, another two and a half months; and from mid-January to the end of April 2018, approximately three and a half months. Ms. Szpulak submits that the appropriate credit for his time spent on restrictive bail conditions, taking into account the periods when he was permitted to be in China, is nine months.

I am prepared to accept that seven months of house-arrest and 26 months of curfew represents an infringement on the accused's liberty and that he should be given some credit for the time he has spent under restrictive bail conditions, as per R. v. Downes, [2006] OJ No. 555. The amount of time to be credited for time on restrictive bail conditions is within my discretion. In this case, I believe the credit suggested by Ms. Szpulak, on which the Crown made no submissions, while on the high end, is reasonable in the accused's particular circumstances and I will grant the accused credit of nine months, or 270 days, for pre-sentence bail conditions, together with the equivalent eight days for the pre-sentence custody, for a total credit of 278 days.

Sentencing Order

The accused, if you could please stand?

The sentence on the count of unlawful production of methamphetamine for the purpose of trafficking is eight years less 278 days of credit, leaving a remaining sentence of seven years and three months or 2,642 days.

There will be a sentence of six years on the count of possession of methamphetamine for the purpose of trafficking, and four-year sentences on each of the counts of unlawful production of MDA and possession of MDA for the purpose of trafficking, to run concurrent to each other, and concurrent to the sentence on the charge of production of methamphetamine for the purpose of trafficking.

Therefore, the total sentence remaining is one of seven years and three months.

An order is also made under s. 109 of the Criminal Code prohibiting you from possessing any firearms, cross bow, restricted weapon, ammunition or explosive device for ten years.

There will also be an order under s. 487.051 of the Criminal Code authorizing the taking of a sample of a bodily substance from you that is reasonably necessary for the purpose of forensic DNA analysis. I have considered and weighed your privacy interests and have concluded that the minimal intrusion into your privacy is justified in the circumstances.

Finally, I also recommend, as Ms. Szpulak had requested that I do, that you be considered for early release on parole.

I will conclude by thanking all counsel for their excellent advocacy and professionalism throughout this matter. I wish you good luck.

Released: April 11, 2019 Justice R. Maxwell