His Majesty The King v. Yung Guang Gao, Jian Guang Chen, Zhenzeng Weng and Xiaoqin Kang, 2024 ONCJ 497

ONTARIO COURT OF JUSTICE

DATE: 2024 09 09 COURT FILE No.: Windsor 22-80200105

BETWEEN:

HIS MAJESTY THE KING

— AND —

YUNG GUANG GAO, JIAN GUANG CHEN, ZHENZENG WENG and XIAOQIN KANG

Before: Justice S. G. Pratt

Heard on: 9 April, 13 June, 2 July 2024 Reasons for Judgment released on: 9 September 2024

Counsel: Mitchell Witteveen, for the Crown Nicholas Decock, for the Defendants

Pratt J.:

[1] On 9 April 2024, Yung Guang Gao, Jian Guang Chen, Zhenzeng Weng, and Xiaoqin Kang pleaded guilty to an offence under s. 12(6) of the Cannabis Act. Sentencing evidence and submissions were heard on 13 June and 2 July. These are my reasons for sentence.

Facts

[2] The parties filed an agreed statement of facts. It discloses that the Ontario Provincial Police commenced an investigation of the property at 125 Mersea Road 5, Leamington, in February 2022. Surveillance revealed activity consistent with the cultivation of cannabis marijuana. The Town of Leamington had done its own investigation and issued a letter to the property owner ordering a cessation of any cannabis marijuana growing on the property.

[3] On 23 March 2022, the OPP executed a search warrant at the address. When they did, they found all four defendants in the house that was on the property. None were residents or owners.

[4] Police seized the following cannabis marijuana pursuant to the warrant: (1) 7,640 plants at various stages of growth; (2) Approximately 25 bags of cannabis marijuana “shake”; (3) 65lbs of processed cannabis marijuana in vacuum-sealed bags; and (4) 435.9lbs of wet and mouldy cannabis marijuana.

[5] The processed cannabis marijuana was found in the basement of the residence together with some of the mouldy product. The rest was in the greenhouse on the property.

[6] While there were two registration certificates found that would have permitted the cultivation of cannabis marijuana on the property, they only allowed a total of 876 plants and both had expired in June 2020. Neither was in the name of any defendant.

[7] Called to testify on sentencing, Detective Constable Benjamin Metcalfe provided evidence on the value of the seized items. He fairly noted the value could be impacted by the amount of THC in the product, the variety of cannabis marijuana, and how skillfully it had been prepared. He acknowledged there was no evidence on any of these variables. As a result, he could only suggest an average value for processed cannabis marijuana of $1,000 per pound. He said the marijuana shake, which is the leftovers when a plant is trimmed, is usually not sold. Regarding the mouldy cannabis marijuana, he said he had only seen marijuana in that condition sold once, for approximately $500 per pound.

[8] The value, then, of the processed cannabis marijuana would be approximately $65,000. The value of the mouldy cannabis marijuana, at most, could be $217,950. Or it could be worthless. The mouldy cannabis the officer had seen sold in the other case was only starting to mould and had a high seed content. I have no evidence of how mouldy this cannabis marijuana was, or of its seed content. As the value of drugs seized is an aggravating factor in a case like this, it is incumbent on the Crown to prove that value beyond a reasonable doubt. I accept the officer’s evidence on the packaged marijuana, but I find the Crown has not established any monetary value for the mouldy product. That said, the sheer amount of it, over 400lbs, substantiates the idea that this was not a small operation.

Positions of the Parties

[9] Counsel for the defendants seeks the same sentence for all. He argues for a conditional discharge and 12 months’ probation. He points to their relatively limited involvement, their lack of prior records, and potential collateral consequences of these proceedings. He also recommends an elevated victim surcharge to help offset the cleanup costs incurred by the state in dealing with the property.

[10] The Crown seeks conditional sentences of imprisonment of six months less a day, followed by probation. The size of the growing operation, the Crown says, requires a custodial sentence.

The Defendants’ Backgrounds

[11] All four defendants are from Fujian Province, China. All come from modest backgrounds. The Defendant Kang did not attend school as his family could not afford it. The Defendants Gao and Weng went to elementary school, while the Defendant Chen also attended high school. None can read English, and their ability to speak the language is limited to conversational pleasantries. All have been in Canada since at least 2013. All but the Defendant Gao were sponsored by their children to immigrate and are currently permanent residents. Gao came to Canada as a refugee, fleeing persecution in China for his Christianity. His refugee case is on hold pending the outcome of this proceeding.

[12] The Defendants Gao and Kang are 61 years old. The Defendant Weng is 68, and the Defendant Chen is 66.

[13] Since coming to Canada, all have held a variety of jobs. The Defendant Kang still works in a supermarket but the other three have retired. I have reviewed reference letters filed on behalf of all defendants. Each is glowing. The defendants are said to be hard-working, kind individuals who are dedicated to their families and friends. The writers are effusive in their praise and I have no reason to doubt anything they’ve said.

[14] None of the defendants have criminal records, and I have heard of no additional allegations arising since the laying of the current information.

[15] According to counsel, all defendants understood they were taking jobs cleaning a greenhouse. They were to be paid $180 per day, but I’m told they never were. Further, I was told they understood the property owners had valid certificates for cultivating cannabis marijuana. It is acknowledged they should have been more proactive in confirming this point.

Principles of Sentencing

[16] Section 718 and onward in the Criminal Code sets out the principles courts must consider when determining fit sentences. Additionally, the Cannabis Act sets out its own sentencing principles in s. 15, including several statutorily aggravating factors.

[17] Of particular importance in this case is s. 718.2(d), which states that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate, and s. 718.2(e), which states that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[18] Even though cannabis marijuana has been, to some degree, decriminalized in Canada, it is still subject to significant restrictions. When those restrictions are violated, especially in regard to the production or distribution of it, courts must denounce and deter this illegal conduct. When the offence to which the defendants have pleaded guilty is prosecuted by indictment, it is punishable by up to 14 years imprisonment. When prosecuted summarily, it is punishable by a $5,000 fine, six months imprisonment, or both. It is still a serious offence, despite cannabis marijuana’s removal from the Controlled Drugs and Substances Act.

[19] On the other hand, s. 12(6) of the Cannabis Act is a bit unusual in the chasm that exists between the indictable maximum punishment of 14 years imprisonment and the summary maximum punishment of six months. (I am not ignoring the additional punishment of a $5,000 fine, but my comments are focused only on the potential custodial sentences.) In the Criminal Code, there are relatively few hybrid offences that carry 14-year indictable maximums. Those that do tend to have higher summary maximums. For example, sexual assault of a person under the age of 16 carries a 14-year indictable maximum and a summary maximum of two years less a day. Other child sexual assault offences have the same indictable and summary maximums. My review of the Criminal Code, in fact, found no hybrid offence where the indictable maximum is 14 years and the summary maximum is six months. All such hybrid offences use the default summary maximum set out in s. 787 of two years less a day imprisonment.

[20] I take from this that Parliament envisioned a very broad range of offenders that could be captured under s. 12(6) of the Cannabis Act. More than that, Parliament recognized offenders prosecuted summarily under this subsection would be of such reduced culpability that they should only be exposed to a significantly reduced maximum sentence. Prior to plea in this case, the Crown re-elected to proceed summarily.

Caselaw

[21] Both parties have provided caselaw in support of their positions. I have considered all cases cited, even if I don’t mention them specifically in these reasons.

[22] For the defendants, counsel relies on my brother Justice Rondinelli’s decision in R. v. He [2019] O.J. No. 2183. While factually different from the case at bar, counsel points to His Honour’s words at paragraph 18 of the decision:

A formal conviction is not the only manner in which to achieve deterrents [sic] and denunciation. In my view, any reasonable member of the public fully apprised of the circumstances of this offence and this offender would come to the realization that Mr. He has learned his lesson and did not get off easy. Mr. He has had these proceedings hanging over his head since June 2017, and has been bound by bail conditions since that time. In addition, he will be bound by probation conditions moving forward to ensure his rehabilitation stays on track.

[23] Counsel also refers to R. v. Le 2022 ONCJ 465, where at paragraph 50, my sister Justice Green considered the difference between labourers in an illegal grow operation and the people truly in control of the business:

Moreover, the inherent seriousness of the offence of breaching the mandates of the Cannabis Act is the primarily the responsibility of the operating minds of the business. It should not be used to justify a punitive sentence for these accused who were ignorant of their employers’ unlawful activities.

[24] It is admitted that the defendants’ ignorance of the legality of the business does not provide them with a defence. It is argued, however, that being labourers and not owners should lessen their culpability.

[25] On the issue of immigration consequences, counsel relied on several cases. Justice Pomerance, then of the Superior Court of Justice, considered the general issue of collateral consequences of sentencing in the case of R. v. Zhou 2016 ONSC 3233. Her Honour arrived at the following conclusions, set out at paragraph 14:

From these cases, I draw the following principles: a. The court may consider the collateral consequences of a sentence in arriving at a fit disposition; b. Collateral consequences may pertain to immigration status, but may also pertain to other life circumstances; c. The court may consider consequences of sentence, not only for the offender him or herself, but for family members; d. Collateral consequences are not properly considered mitigating or aggravating factors. They are personal circumstances bearing on the prospect of rehabilitation; and e. Collateral consequences, while relevant to sentence, cannot justify imposition of a sentence that is unfit or disproportionately lenient.

[26] I note that in this case, Justice Pomerance declined to grant a conditional discharge and instead imposed a 5 ½ month jail sentence. This decision reflected the immigration consequences the offender would face, including the significantly more serious consequences that a sentence of six months or more would engender. The offender in that case was, like the present defendants, only engaged in the maintenance of marijuana plants, though he was maintaining a far smaller grow operation than in the case at bar. He was not alleged to have been a controlling mind of the operation. Unlike the present defendants, the offender had four previous convictions on his record, albeit for unrelated offences. He also pleaded guilty to theft of electricity.

[27] In rejecting the call for a conditional discharge, Her Honour found that a custodial sentence was required. Further, the granting of a discharge would circumvent Parliament’s clear intention that a person found guilty of a serious criminal offence be deemed inadmissible to Canada. A discharge in that case would have been an unfit sentence, and a court’s consideration of immigration consequences does not permit it to impose a sentence outside the appropriate range.

[28] Factually, I find the offender’s four previous convictions make this case distinguishable from the case at bar. I nonetheless do adopt the Court’s summary of how collateral consequences should be treated.

[29] In R. v. Chen and Huang, an unreported 2023 decision of Justice Donald, His Honour cited the Le decision, supra, and imposed absolute discharges on two offenders who were found to be gardeners in a large, illegal grow operation. In that case, both offenders were refugee claimants who had no records and were otherwise law-abiding members of society. Taking into account the triable issues present in that case, together with the pleas of guilt and immigration consequences, His Honour found that discharges could provide sufficient denunciation and deterrence. As the Court noted at page 6 of the decision:

For these two prosocial men they have now spent more than a year, I would expect, extremely worried about the repercussions for them in terms of their refugee claim and being returned to China, a place that they fled from. How could that not have a deterrent impact?

[30] In the present case, all defendants have been living with the prospect of being removed from Canada for more than 2 ½ years. In the defendant Gao’s case, there is the additional fear of persecution if he is returned to China. It’s hard to see how that could not result in specific deterrence for each defendant.

[31] The Crown relies heavily on R. v. Strong 2019 ONCA 15, where the Court of Appeal said the following at paragraphs 2-4:

The appellant’s main argument rests on the assertion that that the changed societal attitude toward marijuana use warrants a reduction in the established range for this kind of offence. We cannot accept this submission.

While the societal perception of the seriousness or harmfulness of the offender’s conduct has a role to play in considering factors such as denunciation and deterrence, we see no basis to conclude that the conduct involved in this case would be viewed as anything other than serious criminal misconduct.

Parliament has not significantly altered the applicable penalty. Nor, in our view, can one assume that a large scale, prolonged trafficking for profit in marijuana is somehow viewed as less serious because of the legislative changes in respect of personal possession and use. The sentence was within the established range. We would dismiss the appeal.

[32] The idea that sentences under the Cannabis Act should not be significantly different than previous sentences under the Controlled Drugs and Substances Act was cited with approval by Justice Stribopoulos in R. v. McAlpine 2024 ONSC 797, where His Honour found pre-Cannabis Act decisions “remain authoritative”.

[33] The case of R. v. Tran 2017 ONSC 651 saw the offender sentenced to 12 months jail after a trial. The Court found he was “at minimum” a caretaker who tended to the plants. There was no evidence he profited directly from the operation. Justice Goodman agreed with the Crown that even lower-level participants bore responsibility for the outcome of a large-scale grow operation, noting that such a business “cannot be sustained based on a single, isolated, or impulsive act”.

[34] His Honour also considered the issue of moral culpability in that case. In the context of a s. 12 Charter analysis, he quoted the Court of Appeal for Ontario in R. v. Nur 2013 ONCA 677 at paragraph 86:

The moral culpability component of an offence, the second factor to be considered when assessing seriousness, usually refers to the mental state that must accompany the commission of the prohibited act. There are a variety of culpable mental states, including intention, recklessness, and knowledge. An intention to bring about a prohibited consequence ranks at the top of the criminal law hierarchy of blameworthiness or moral culpability.

[35] In the present case it has been submitted, and not disputed, that the defendants thought there was a valid license in place for the Leamington grow operation. They should have done more to confirm that but did not. Their moral culpability, according to Nur, would fall under recklessness rather than subjective intention. They are not, therefore “at the top of the criminal law hierarchy of blameworthiness or moral culpability”.

[36] The case of R. v. Zheng 2013 ONSC 4582 is factually similar to the case at bar. There, the offender pleaded guilty to production of marijuana and possession for the purpose of trafficking in an amount over 3kg, both contrary to the Controlled Drugs and Substances Act. Police warrants and surveillance discovered just under 6,000 plants on the property in question. Zheng was only a gardener and not one of the controlling minds of the operation. He was a permanent resident in Canada, having emigrated from China eight years earlier. He was 52 years old and had no criminal record. He had one daughter who resided in Canada. While he was supposed to have been paid for his work at the grow operation, he never actually received any money. He was remorseful for his actions and had been on bail for nearly four years without difficulty.

[37] In the result, Justice Fuerst found the Crown’s position of 14 ½ months jail to be within the range, but imposed two consecutive sentences of 6 months less a day to account for the immigration consequences he would face on conviction.

[38] The Crown also provided other cases, decided under the Controlled Drugs and Substances Act, where either incarceration or lengthy conditional sentences were imposed for similar offences.

[39] Regarding the Crown’s reliance on Strong, supra, it should be recognized that case reflected an endorsement made by the Court of Appeal. Endorsements are different from written judgments. That difference has been explained in multiple decisions, including by Justice Juriansz in R. v. Singh 2014 ONCA 293 at paragraph 12:

While all decisions of this court are binding, care must be taken to avoid reading unwarranted jurisprudential principles into a decision of the court rendered in an endorsement as brief as in Bugler. Such endorsements are intended primarily to simply pronounce a decision for parties who, having been present in court during the argument of the appeal, will understand the thrust of the court's reasoning. When the court intends to articulate jurisprudential principles for the first time, it does so in a written judgment. Vanderbruggen is such a case. This court has expressed this caution before.

[40] In that case, His Honour cited R. v. Timminco Ltd., 2001 ONCA 3494, [2001] O.J. No. 1443 (C.A.) as espousing the same principle.

[41] This does not mean endorsements are without any precedential value. They do, however, have to be kept in perspective. They are not written judgments that lay down concrete legal principles. They are brief responses to the parties before them.

[42] While Justice Stribopoulos found that pre-Cannabis Act sentencing decisions remained authoritative, His Honour stopped short of finding them to be binding. They are authoritative in the sense of being influential, but the overall landscape related to cannabis has changed sufficiently that there is room for new law. Adding to that the need for all sentencing proceedings to be individualized, I find that the Crown’s authorities are helpful and persuasive, but not binding on me.

Aggravating and Mitigating Factors

[43] The main aggravating factor facing the defendants is the size of the operation. Police found 7,640 plants and 65lbs of dried, packaged cannabis marijuana. In addition, there was over 400lbs of wet and mouldy cannabis. While the fact that this quantity of cannabis marijuana had been allowed to spoil may speak to the care put into the operation, the absolute quantity of confirms the significant size of the enterprise.

[44] In the Tran decision, supra, Justice Goodman was faced with the question of whether clones should be counted as plants in assessing the size of a grow operation. The preponderance of the caselaw seems to suggest that for clones to be considered plants, they must be shown to have taken root. In the present case, police discovered 2,569 clones “in the starting stages of growth”. I have no evidence if that means they had taken root or simply sprouted as seedlings. As the large size of a grow operation is an aggravating factor, the Crown must prove that point beyond a reasonable doubt. I find I cannot conclusively say the clones in this case qualified as plants such that they should be counted in the total. Having said that, even if I subtract the clones from the total number of plants seized, I am still left with 5,071 plants. By any definition, this was a large operation far beyond the realm of personal use.

[45] There are several mitigating factors present. All defendants have entered guilty pleas and accepted responsibility for their actions. This is a significant show of remorse. The plea is all the more valuable as I was told the Crown had conceded a breach of the defendants’ s. 10(b) Charter rights. The defence would have also argued a violation of s. 8. In short, it appears there were valid triable issues at play had the matter proceeded to trial.

[46] The plea also saved the Court an estimated 8 days of trial time. In a system still choked by pandemic backlogs, this is significant.

[47] It is also mitigating that all defendants lead productive, pro-social lives. The letters of support are, as I said, glowing. Each defendant is a valued member of their community. Those with children and grandchildren play important roles in the lives of their families.

[48] While it is not a mitigating factor, the fact that the premises in question is rural rather than urban or suburban is an important distinction. The danger of a grow operation in a residential area, often with illegal hydro bypasses put in place, is greater than a greenhouse operation on farmland. This point is more akin to a lack of an aggravating factor, but it is still notable.

Analysis

[49] The enterprise discovered by police on 23 March 2022 was large but not particularly well-run. Police found thousands of plants and a large amount of packaged marijuana, but they also found hundreds of pounds that had been allowed to spoil. There is nothing in the agreed statement of facts suggesting any business materials were found in the residence or on the property. It seems clear that the four defendants were nothing more than caretakers who, given the spoiled marijuana found by police, were not well-versed in the trade.

[50] As I have said, the biggest aggravating factor is the size of the operation. It dwarfs nearly every business in the caselaw provided by either counsel. It could be argued that feature alone calls for a jail sentence.

[51] In determining a fit sentence, however, I am required to go deeper than the quantities seized. I must consider all available evidence and balance the principles of sentencing with the aggravating and mitigating factors unique to this case. I must craft a sentence that is proportionate to the gravity of the offence and the degree of responsibility of each defendant.

[52] On that point, I have heard nothing to suggest that any one defendant was more or less responsible than the others. Both counsel have treated them as a group throughout their submissions. I likewise see no reason to differentiate between them and so the sentence will be the same for each.

[53] I have considered the immigration consequences each defendant faces in this proceeding. If convicted, each will be deemed inadmissible to Canada pursuant to s. 36(1)(a) of the Immigration and Refugee Protection Act on the grounds of “serious criminality”. Each defendant may be subject to a removal order. If the sentence imposed is six months or greater, s. 64(1) of that act states that no appeal from the removal order is available. These consequences flow only from a conviction, and would not arise if the defendants received discharges pursuant to s. 730 of the Criminal Code.

[54] I return to the considerations outlined by Justice Pomerance in Zhou, supra.

[55] If convicted, the defendants, aged between 61 and 68 years, will face the collateral consequence of possible removal from Canada and deportation to China. Each would be removed from the community in which they have lived for a decade or more. The defendant Chen would be separated from his wife of 40 years, his children, and grandchildren. The defendant Kang would lose her job and be separated from her daughter and grandchildren. The defendant Weng would be separated from his wife, son, and extended family. The defendant Gao, if deported, could face persecution in China for his religious beliefs. The impact of each defendant’s removal from Canada is potentially seismic, not only for them but for their families and communities as well.

[56] Further, the defendants now know that criminal misconduct carries with it the potential for their removal from Canada. It is hard to imagine more compelling specific deterrence. I have no difficulty accepting that the Court will not see these defendants again.

[57] I recognize this was a large marijuana grow operation. The value of the marijuana seized by police is high. People who choose to grow marijuana outside the licensing regime created by the state must be dealt with seriously. Unfortunately, the owners of the property and the people in control of this enterprise, are not before me. Instead, I have four otherwise hardworking, successful immigrants who took a job they shouldn’t have. As a result, they have been arrested and subjected to the court process and the specter of deportation for the last 2 ½ years.

[58] On the facts admitted, I see no basis for imposing the Crown’s recommended sentence. It is hard to see how any defendant, after a meaningful guilty plea and with no prior criminal record, would merit one day short of the maximum sentence available. I agree that a relatively low maximum sentence could result in something of a logjam at the top of the sentencing range, but none of these defendants warrant inclusion in that group.

[59] I recognize the similarities between the present case and Zheng, supra. There are, however, important distinguishing features as well. Notably, that offender was convicted of producing marijuana and of possessing more than 3kg of marijuana for the purpose of trafficking under the Controlled Drugs and Substances Act. That second offence was straight indictable and punishable by life imprisonment. In the present case, the Crown has elected to proceed summarily on a hybrid offence that is objectively less serious, based on the respective potential punishments.

[60] Bearing in mind the many mitigating factors present, I am not persuaded that a custodial sentence of any sort is warranted in this case. I am required to consider other sanctions that could be reasonable in the circumstances. Given the complete lack of antecedents, and what I find to be a very low risk of re-offending, I find a period of probation would meet the objectives of sentencing.

[61] I turn now to the defence recommendation that I impose conditional discharges.

[62] Without question, conditional discharges would be in the defendants’ best interest. The question is whether they would be contrary to the public interest.

[63] Justice O’Donnell, of this court, considered this question in the case of R. v. K.M. [2016] O.J. No. 4612 (C.J.). At paragraph 32, His Honour stated:

Undoubtedly, one of the central concerns in the analysis of the public interest branch of the test for granting a discharge is whether or not the granting of a discharge would tend to undermine the general principles of sentencing, for example by appearing to dilute the objective seriousness of the offence in the mind of the public. Any such analysis must necessarily presume an informed and rational public, rather than one motivated by ignorance or shortsightedness. Whether or not a discharge would be contrary to the public interest will necessarily be determined in many cases by the precise details of the offence, the background and character of the offender and the components of the discharge itself. For example, in some cases an absolute discharge might be clearly contrary to the public interest whereas a fairly rigorous conditional discharge for precisely the same offence might well pass the public interest test.

[64] The issue was further considered in the Court of Quebec case of R. c. McQueen 2023 QCCQ 4646, [2023] Q.J. No. 6990. Beginning at paragraph 110, Justice Labrie stated:

110 The public interest is a broad and general concept that, in the context of s. 730(1) Cr.c., takes into account a variety of factors, including the objective of general deterrence, the seriousness of the offence, its impact on the community and public confidence in the justice system.

111 The public interest test requires consideration of the seriousness of the offence in light of the circumstances of the case and, ultimately, the impact on the public confidence in the judicial system if the accused would be granted a discharge.

112 This criterion must be assessed by determining what a reasonable and informed person would think.

113 The reasonable and well-informed person agrees with all the legal principles to be applied and with the fact that the response to a conviction may vary from one offender to another.

114 A discharge must not be contrary to the public interest, but it does not mean it has to be in the public interest.

115 Crimes of a serious nature are not an obstacle to the granting of a discharge. But the granting of a discharge is less suitable when the crimes and the circumstances of their commission are serious. The more serious the offence, the less likely it is that a discharge will be granted and the more it becomes necessary to demonstrate the presence of factors favorable to the offender. This being said, discharges have been granted or upheld in appeal even in situations that normally require to prioritize the objective of general deterrence and denunciation.

116 The objective of general deterrence for offences that are more serious does not constitute a diriment obstacle to a discharge. The circumstances surrounding their commission are inseparable. It is up to the judge to exercise his discretion, to consider the totality of the circumstances, and to impose the sentence that he considers just and proportionate.

117 While it is necessary, when assessing the public interest, to be sensitive to the reaction of the reasonable and well-informed person, this sensitivity cannot lead the judge to refuse to render such a sentence if it is adequate. (Footnotes omitted)

[65] Both of these decisions emphasize that it is the unique circumstances before a sentencing court that will dictate the appropriateness of a discharge. The offence committed, the way in which it was committed, the specific offender who committed it, and the effect of a discharge on the confidence of a reasonable, well-informed member of the public must all be considered.

[66] In the present case, balancing all aggravating and mitigating factors, and taking into account the circumstances surrounding the commission of the offence and the potential consequences flowing from that offence, I find the granting of a conditional discharge to each defendant would not be contrary to the public interest.

[67] To be clear, the sentences I impose today are at the low end of the spectrum. For the sentencing exercise to remain individualized, as all parties recognize it should be, courts must retain the freedom to employ that low end of the spectrum in appropriate cases.

Final Judgement

[68] Each defendant will be granted a conditional discharge and placed on probation for a period of 24 months. In addition to the statutory conditions, the terms of probation will be as follows:

(1) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic, or other means with Mei Xian Cao, Margaret Kennedy, or each other; (2) Do not be within 100m of any place where you know any of the persons named above to live, work, go to school, frequent, or any other place you know the persons to be except for required court appearances; (3) Do not attend 120, 122, 124, or 125 Mersea Road 5, Leamington, Ontario; (4) Do not possess anything defined in the Criminal Code as a weapon; (5) Do not possess or consume any unlawful drugs or substances except with a valid prescription in your name or those available over the counter; (6) Do not possess any hydroponic growing equipment or other drug paraphernalia.

[69] Further, there will be a s. 109 weapons prohibition against each defendant for a period of ten years. I will also impose elevated victim surcharges of $500 on each defendant, payable within 6 months.

Released: 9 September 2024 Signed: Justice S. G. Pratt