Court File and Parties

ONTARIO COURT OF JUSTICE DATE: June 1, 2021 COURT FILE No.: Newmarket 19 01715

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHENG HU

Before: Justice Rose

Reasons for Sentence

Counsel: K. Stewart, for the Crown J. Lee, for the accused Sheng Hu

Rose J.:

[1] Mr. Hu was found guilty after trial of the following charges:

i). Offer to Transfer a restricted firearm without authorization on 27 February 2019 contrary to s. 99(2) of the Criminal Code;

ii) attempt possession of a restricted firearm on February 6, 2019 without being licenced to do so contrary to s. 92(3) of the Criminal Code;

iii) attempt possession of a restricted firearm on February 9, 2019 without being licenced to do so contrary to s. 92(3) of the Criminal Code;

iv) attempt possession of a restricted firearm on February 10, 2019 without being licenced to do so contrary to s. 92(3) of the Criminal Code;

v) attempt possession of a restricted firearm on February 11, 2019 without being licenced to do so contrary to s. 92(3) of the Criminal Code;

vi) attempt possession of a restricted firearm on February 13, 2019 without being licenced to do so contrary to s. 92(3) of the Criminal Code;

vii) attempt possession of a restricted firearm on February 16, 2019 without being licenced to do so contrary to s. 92(3) of the Criminal Code;

viii) attempt possession of a restricted firearm on February 21, 2019 without being licenced to do so contrary to s. 92(3) of the Criminal Code;

ix) Fraudulently Personate Ting Zhao with intent to obtain firearms contrary to s. 403 of the Criminal Code.

[2] In reasons for judgement delivered October 27, 2020 I found that Mr. Hu attempted to purchase several weapons. This came to light when the sellers of the firearms reported the attempts to the police.

[3] It is necessary to recount some of the facts found after the trial. On several days in February of 2019 Mr. Hu tried to purchase guns on-line from lawful firearms dealers. Four of those attempts were from the gun seller G4C (Feb. 6, 9, 10, 11), two were from Firearms Outlet Canada (February 13, 21), and one was from Bulls Eye (Feb. 16). In each transaction Mr. Hu paid money on-line for a gun. On February 6 he paid $226 for a Glock 48 9mm pistol as well as $746.98 for a Browning Mark 3 9mm pistol and some 12 gauge ammunition. On February 9 he paid a $300.00 deposit for a Walther PPQ 9mm pistol. On February 10 he paid a $226.00 deposit for a Glock 48 9mm pistol. On February 11 it was a $10.29 payment for .22 caliber ammunition. On February 13, he paid $292.93 for a 4.6” Tokarev gun and a box of ammunition. On February 16 he paid $236.29 for a Tokarev pistol plus ammunition. On February 21 he paid $745.96 for a Smith and Wesson Sport 5.56 gun.

[4] In each attempt Mr. Hu used the same email account, and his home address in Stouffville where he actually lived with his mother. It was there that he was arrested on February 28, 2019. Other than the transaction where he held himself out as his mother his identification and address were correct.

[5] In each of these attempted purchases the order was met with a follow-up inquiry by an employee of the on-line gun seller who asked for additional information before finalizing the order. In each instance Mr. Hu could not, and did not, provide that information and the sale was cancelled. No guns were actually delivered. The evidence permits me to find that the orders were quickly rejected by the sellers. There is no evidence that the money paid by Mr. Hu was ever refunded.

[6] In each attempted purchase the on-line order had a lack of realism. For instance, on February 16 the order was placed by Mr. Hu who gave an invalid PAL number. When the seller followed up asking for more information Mr. Hu gave a stock PAL which is available on the internet with the picture of a fictitious person named John Smith. The fake PAL had a different name and date of birth and PAL number than the one first given on the order form. This was readily apparent.

[7] In another attempt, on February 6 Mr. Hu was challenged by the seller to provide his PAL and date of birth so that the seller could do the necessary checks with the RCMP. Mr. Hu replied “This is my privacy, you can’t check, I can’t give you because Canada everyone has privacy you can’t ask to me give firearms licence”. When the seller refused to proceed with the sale until the necessary documentation was provided Mr. Hu changed his mind to wanting to buy an air gun.

[8] On one of those attempts February 16 Mr. Hu used the name of his mother Ting Zhao to order a Tokarev TT – 33 Pistol and 8 rounds of ammunition. Because he held himself out as Ting Zhao in this transaction he was found guilty of personation.

[9] By February 27 these efforts to purchase guns came to the attention to the police who investigated. This evolved into an undercover operation, where Detective Constable Wong befriended Mr. Hu on-line. In short order Mr. Hu offered to trade DC Wong a HK VP9 for a Glock 19 which Wong was selling. Mr. Hu’s offer of a VP9 came with a picture of that gun. The buyer insisted that the gun in the picture real, and the image of it put into evidence confirms that it did indeed look like a real 9mm handgun. The trial heard evidence from DC Wong that his communication with Mr. Hu simply went cold as negotiations over price unfolded. There was no final agreement over price and no plans to meet up for the exchange.

[10] Only hours later Mr. Hu was arrested in his residence, and the gun which he had offered to DC Wong was seized. It turned out to be a BB gun, not a handgun, but it looked like a real handgun in the picture, and it was offered to DC Wong as a real handgun. No real handgun was ever found in the possession of Mr. Hu. There is no evidence that Mr. Hu ever came close to acquiring a real firearm. His efforts satisfied the legal definition of an attempt for purposes of culpability because they were more than merely preparatory measures to acquire a firearm without a legal PAL, but there is no evidence which would permit a finding any stronger than that.

[11] What is striking about the attempts by Mr. Hu to purchase these guns is both their profound lack of sophistication, and similarly profound lack of understanding that a lawful gun seller would not deliver a firearm without completing due diligence. In each transaction Mr. Hu seems to be under the impression that he merely had to send money to a lawful gun seller and then receive a gun in the mail in short order. Nothing more was required. I find that Mr. Hu may well have wanted to purchase the guns, and attempted to do so, but his attempts were unsophisticated in the extreme. He demonstrated that he had no understanding about the regulatory environment which governs the purchase of guns. His emails show him to be under the impression that a hand gun could be delivered to his house with the ease of a fast food order. He appeared to be under the impression that a stock PAL taken from a public web site in the name of a fictitious third person would suffice as government licence to obtain a hand gun. These attempts were doomed to fail. All that succeeded was the transfer of hundreds of dollars to lawful sellers as consideration for guns.

Mr. Hu’s mental status

[12] After convicting Mr. Hu I ordered a pre-sentence report (PSR). It contained the comments of Mr. Hu’s psychiatrist, who told the PSR writer that Mr. Hu has a mild intellectual disorder, and “does not understand the social or political implications of his behaviour” and “I do not believe he possesses the mental competences to understand the complexity of his behaviour”. The PSR reported that Dr. Sy was of the opinion that “…the problem is mental retardation, he does not have the comprehension or the sophisticated way of looking at things and making judgements”.

[13] When the case was before me in early January for sentencing I raised this with counsel and inquired whether the PSR contents raised Not Criminally Responsible (NCR) issues. After hearing submissions I ordered a report to determine if Mr. Hu was in fact NCR.

[14] Dr. Patel of CAMH provided a report to the Court on March 31 which detailed Mr. Hu’s mental status. Mr. Hu does not have a long documented history of mental health challenges. Indeed, his first contact with a mental health professional was in February of 2019, around the time of the offences. His family had concerns before then but there is no clinical documentation to confirm mental illness before the offences. Dr. Patel’s report concluded that Mr. Hu was able to appreciate that his actions in attempting to purchase the various guns were wrong. Psychological testing concluded that he likely suffers from a borderline intellectual functioing and is in early stages of a psychotic disorder. He reported hallucinations, but Dr. Patel could not conclude whether those were hallucinations or simply self-talk.

[15] Based on the report from Dr. Patel, and after hearing from Crown and defence I did not conduct a hearing to determine if Mr. Hu was NCR.

PSR

[16] The PSR shows Mr. Hu to be 24 years old. He was born in China and immigrated to Canada in 2010. It appears that his father remained in China and he has had little contact with him in recent years. They are estranged. Mr. Hu lives with his mother and completed high school in Thornhill. Other than Mr. Hu’s mental health, there is little in the PSR to tell me about Mr. Hu. He appears not to have much contact in the community. He has no employment and apparently no friends or companions beyond his mother. The PSR permits a finding that he is a recluse.

[17] There is nothing surreptitious in the circumstances of the offences. There is no criminal context to these purchases. There is no evidence one way or the other about what Mr Hu wanted to do with the guns if he were to have acquired them. There is no evidence that he wanted to re-sell them or use them for criminal purposes. There is no evidence that he sought the guns for protection or nefarious intent.

[18] Count 1 calls for a penalty under s. 99 (2) (a). The mandatory minimum penalty of 3 years in that section of the Criminal Code has been struck down by several rulings of the Ontario Superior Court, see R. v. Ball 2019 ONSC 7162, R. v. Bruce [2019] O.J. No. 5159, R. v. Bajwa 2020 ONSC 185, R. v. Hussain 2015 ONSC 7115, R. v. Harriot 2017 ONSC 3393. As Glithero J. found in Ball, those findings of unconstitutionality are to be followed by judges of coordinate jurisdiction. As an inferior Court this Court is bound by findings of the Superior Court that s. 99(2) (a) is unconstitutional, see R. v. Roberts 2019 ONCJ 22, and R. v. Alamary [2018] O.J. No. 4927. Accordingly there is no applicable mandatory minimum sentence of imprisonment for Count 1.

[19] Counts 3 – 9 are penalized under s. 92(3), which has only a maximum sentence of imprisonment of 10 years. There is no mandatory minimum sentence of imprisoment under that provision.

[20] The Crown asks for a penalty of 3 years in jail. Mr. Stewart fairly conceded the weight of authority regarding the minimum mandatory penalty for weapons trafficking but did not concede that the cases had been correctly decided. The Crown emphasies the importance of denunciation and deterrence in this sentence, and places rehabilitation behind that sentencing principle. The Crown argues that the multiple attempts to purchase handguns is aggravating in this case, even if they were unsophisticated attempts. Even with the mental health concerns, Mr. Stewart argues for a penitentiary sentence.

[21] The Defence suggests that the appropriate penalty is a conditional sentence of 1 year to 2 years less a day. Mr. Lee emphasises the importance of rehabilitation. Mr. Hu is a youthful first offender with documented mental health concerns.

[22] Given the facts before me I am prepared to find the following mitigating factors on sentence.

• Mr. Hu is a youthful first offender;
• He has no prior criminal record;
• Mr. Hu’s efforts did not result in him obtaining in any weapons;
• Mr. Hu’s efforts reflect a complete lack of sophistication. The efforts were beyond merely prepatory but doomed to fail;
• Mr. Hu’s conduct had a lack of connection to true crime. There is no evidence one way or the other about what would happened if he were to actually obtain the guns;
• Mr. Hu suffers from now documented mental health challenges;
• Mr. Hu has significant rehabilitative prospects. The material filed in support of his mental health challenges outlines the fact that he is now under the care of a psychiatrist and is compliant with his treatment, it is mitigating that Mr. Hu first saw Dr. Sy in the middle of the series of attempted gun purchases;
• He has been on a restrictive bail without violation.

[23] There are also aggravating cricumstances:

• Mr. Hu made multiple efforts to obtain guns;
• Mr. Hu’s attempts were to obtain seriously dangerous guns. Handguns are often the weapon of choice for criminals wishing to do harm to members of the public because they are easily concealed;
• Mr. Hu is reclusive, and therefore at risk to those who would leverage his attempts to obtain a gun for nefarious purposes;
• Mr. Hu discussed the exchange of guns with an undercover officer over social media. Mr. Hu therefore was moved to acquire a gun from a non-legal seller. This is mitigated insofar as the discussion to buy a gun over social media ended suddenly without an agreement over price. It is also mitigated by the fact that at one point in the messaging with the under cover officer he offered to exchange his gun for DC Wong’s. Mr. Hu’s was not a real firearm, but a BB Gun which resembled a firearm. Mr. Hu therefore offered to transfer a firearm which he did not have.
• There is a problem with illegal guns in urban areas in Canada, and no area suffers more than the Greater Toronto area. In 2005 the GTA suffered from what was then called the summer of the gun. It is a bitter irony to this judge that the summer of the gun appears to have become endless.

[24] I was provided with sentencing decisions focussed on weapons trafficking, rather than attempted possession of a gun without licence. Weapons trafficking is indeed more serious, but I proceed on the basis that attempted possession of a restricted firearm without a licence is nonetheless a serious offence because the offence seeks to prevent handguns falling into the wrong hands, which is the same concern reflected in weapons trafficking. S. 92(3) lacks the commercial nature of the illegal acquistion of guns.

[25] The cases provided reflect a judicial concern that illegal acquisition of guns is sufficiently serious that it tends to attract a jail sentence. When there is “truly criminal conduct” the sentence in relation to firearms must emphasise the exemplary sentences which emphasise deterrence and denunciation, see R. v. Slack 2015 ONCA 94. As Leibovich J. said in Bajwa (supra at par. 23), “…rehabilitation cannot be ignored but the principles of denunciation and deterence are of paramount concern”. It is for that reason that sentences for weapons trafficking are often with a lower penitentiary range. In R. v. Hewitt 2018 ONCA 561 the offender trafficked 9 restricted long guns, when she was subject to a weapons prohibition. Her 3 year sentence was upheld by the Court of Appeal.

[26] There are also cases of weapons trafficking where the offender receives a conditional sentence of imprisonment. Bajwa is one example. She had the lawful ability to purchase handguns. She purchased two Glock handguns and delivered them to her boyfriend’s residence where the police found them after executing a search warrant. Justice Leibovich imposed a 12 month conditional sentence. In R. v. Roberts (supra) the offender had in his possession a replica AK 47. He had been holding on to that firearm illegally, but for a long period of time. There was no evidence that it was ever fired or ever left his residence. Justice Deluzio imposed a 12 month conditional sentence for weapons trafficking under s. 99(1).

[27] The Criminal Code mandates that any sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender, see S. 718.1. Based on the facts before me, I find that Mr. Hu’s responsibility for the offence is significantly mitigated because of his mental health challenges. I also find that the lack of sophistication and realism in his efforts to acquire the guns places these offences at the lower end of the scale of gravity.

[28] Mr. Hu has been convicted of several offences which have a commonality in theme. He sought to acquire firearms by purchasing them from lawful on line sellers. The method he used was virtually the same in each attempt. The offer to transfer the firearm from February 27 is different in method insofar as he discussed acquring a gun through a non-legal source, but is nonetheless still an attempt to acquire a gun. All offences occurred in a three week period. There is therefore a commonality to the delict in all offences as well as time-frame which is three weeks from beginning to arrest. These factors permit me to find that the sentences should be concurrent to each other.

[29] A conditional sentence of imprisonment is available if the sentence is less than 2 years and community safety would not be endangered. A conditional sentence of imprisonment may only be imposed if it is consistent with the fundamental purpose of sentence and principles of sentenceing, see Criminal Code s. 742.1. The punitive aspect of the conditional sentencing regime cannot be lost. A conditional sentence permits the offender to avoid imprisonment, but not punishment, see R. v. Proulx 2000 SCC 5 at par. 35. Furthermore, a conditional sentence of imprisonment can be somewhat longer than a sentence of incarceration in order to achieve the principles of deterrence and denunciation, see R. v. Sharma 2020 ONCA 478 at par. 185. In this case the PSR does not make a recommendation one way or the other regarding community supervision. It is unclear why. The PSR merely lists recommended terms should Mr. Hu be granted community supervision. With that said, the PSR lists no information which would lead me to conclude that Mr. Hu would pose a danger to community safety if he were granted a Conditional Sentence.

[30] Based on the foregoing I find that an appropriate sentence for Mr. Hu is less than 2 years in jail. He will be sentenced to:

• Offer to transfer s. 99(2) – Conditional Sentence of 15 months;
• Attempt possession of a restricted firearm – Concurrent Conditional Sentence of 9 months – on each charge;
• Fraudulently personate Ting Zhao – Concurrent Conditional Sentence of 4 months;

[31] Terms of Conditional Sentence:

• Report in person to a supervisor immediately and thereafter at all times as directed by the Conditional Sentence Supervisor
• Cooperate with the Supervisor and sign any releases necessary to permit the supervisor to monitor compliance;
• Live at [address redacted] Stouffville, and not change that address without prior consent of the supervisor in advance;
• House arrest for the first third (5 months) of the sentence, except for:
  • for four hours per week to acquire the necessities of life;
  • for any medical emergencies involving you or your mother;
  • going directly to or from school, employment, court attendances, religious services, legal or medical/dental appointments;
  • going directly to or from assessment, treatment, or counselling sessions;
  • you will confirm your schedule in advance with the supervisor setting out the times for these activities;
  • with written prior approval of your supervisor which is to be carried with you during these times;
  • for carrying out legal obligations regarding compliance with this Conditional Sentence Order;
• Do not permit any person to visit your residence;
• You must present yourself at the doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.
• Following your home confiment for the balance of the Order you must obey a curfew of 10 pm to 6 am, except;
  • for any medical emergencies involving you or your mother;
  • going directly to or from school, employment, court attendances, religious services, legal or medical/dental appointments;
  • going directly to or from assessment, treatment, or counselling sessions;
  • you will confirm your schedule in advance with the supervisor setting out the times for these activities;
  • with written prior approval of your supervisor which is to be carried with you during these times;
  • for carrying out legal obligations regarding compliance with this Conditional Sentence Order;
• Do not possess any weapons as defined by the Criminal Code
• Attend and actively participate in counselling for psychiatric or psychological issues, and sign any necessary release of information necessary to permit the supervisor to monitor compliance with this term
• Do not possess any identification, card with data strip credit or debit car or other monetary or banking document unless it was lawfully issued in your own name.

[32] Following the completion of Mr. Hu’s Conditional Sentence he will be placed on Probation for 18 months. The terms are that he must:

• Report by telephone to a Probation officer within 48 hours of the completion of his Conditional Sentence Order, and therafter as directed by the Probation Officer;
• Attend and actively participate in counselling for psychiatric or psychological issues, and sign any necessary release of information necessary to permit the supervisor to monitor compliance with this term;
• Not posess any weapons as defined by the Criminal Code;
• Do not possess any identification, card with data strip credit or debit card or other monetary or banking document unless it was lawfully issued in your own name;

[33] Mr. Hu will be subject to a lifetime s. 109 Order. The offences under ss. 99 and 92 are secondary designated offences under s. 487.04. It is in the best interest of the administration of justice that Mr. Hu supply a sample of his DNA for transmission to the national DNA databank.

[34] When Mr. Hu completes his conditional sentence he will be placed on probation for 2 years. The terms will be:

• report by telephone within 48 hours of the completion of his conditional sentence and thereafter at all times as directed by the probation officer;
• take counselling for mental health as directed by the probation officer and sign all forms necessary to satisfy the probation officer that he has enrolled, attended and completed the counselling;
• no weapons as defined by the Criminal Code.
• not to possess any identification or debit, credit cards not lawfully issued in your own name.

Dated June 1, 2021

David S. Rose