ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-30000596-0000
DATE: 2012-02-22

BETWEEN:

HER MAJESTY THE QUEEN – and – MICHAEL FENG LIN YE Defendant

Brock Jones, for the Crown
David North, for the Defendant

HEARD: February 22, 2012 at Toronto, Ontario

AMENDED REASONS FOR SENTENCE

MICHAEL G. QUIGLEY, J.

Overview

[ 1 ] Michael Ye was convicted of three counts of robbery and two counts of using an imitation firearm during the commission of two of these robberies and also one count of assault with a weapon.

[ 2 ] Mr. Ye’s trial was heard by me without a jury from January 24, 2011 to January 31, 2011. My reasons are reported at R. v. Ye , 2011 ONSC 2278 , [2011] O.J. No. 1670 .

[ 3 ] I was satisfied beyond a reasonable doubt that Mr. Ye was one of the two participants in the XO Karaoke Studio robbery that occurred on September 4, 2007 and in the Chiu Choy Boy Restaurant and Full House Restaurant robberies that occurred on September 24, 2007. I was also satisfied that he used an imitation firearm in each of these ro

[ 4 ] bberies.

[ 5 ] A pre-sentence report was prepared on June 28, 2011. This report contained pertinent information about Mr. Ye’s mental health concerns. Mr. Ye has schizophrenia. For the past year since his trial on these offences, he has been responding well to treatment and his symptoms have stabilized. Nonetheless, his psychiatrist since September 2008, Dr. Ticoll, who is a respected and experienced physician, has opined in a report that Mr. Ye’s mental health will worsen if he is incarcerated. The reasons are set out in his reports.

[ 6 ] Several sentencing hearings were convened since I released my decision to canvass an appropriate sentence that would be sensitive to Mr. Ye’s mental health concerns.

[ 7 ] The issue before me now is what sentence both suits the gravity of Mr. Ye’s crimes and meets his unique and pressing mental health needs.

Summary of Background Facts Relating to the Offence

Circumstances of the Offence

[ 8 ] On September 4, 2007, a robbery took place at XO Karaoke Studio at 693 Bloor Street West, Toronto. It was Kuochin Tiao’s first day working at XO Karaoke Studio. He was on the night shift from 5 p.m. to 3 a.m. It was a quiet night. There was only one group of customers using one of the karaoke rooms.

[ 9 ] Mr. Tiao started to close up at 2:30 a.m. Suddenly, two men burst into the lobby of XO Karaoke.

[ 10 ] Both men were Asian, between 5’5 and 5’6 in height, and in their early 20s. They were wearing ‘hoodie’ sweatshirts, jeans, and baseball caps on their heads.

[ 11 ] One man was holding a handgun. The other man grabbed 60-80 dollars from the till and told the man holding the handgun to shoot Mr. Tiao. Mr. Tiao began to fight the two men. Both men’s caps fell on the floor. Mr. Tiao was left with cuts to his face and bruised ribs from the scuffle.

[ 12 ] The assailants ran away into one of the karaoke rooms. Mr. Tiao tried to trap them in the karaoke room but they broke free. They left with Mr. Tiao’s cell phone and the money taken from the till.

[ 13 ] Mr. Tiao placed the caps on the counter. He called the police and two constables arrived. They located two BB pellets on the floor of the Karaoke Studio directly in front of the service counter. The caps were later tested for DNA. Mr. Ye’s DNA was a likely match for one of the caps.

[ 14 ] Two and a half weeks later, on September 24, 2007, another robbery took place at the Chiu Choy Boy Restaurant located at 3261 Kennedy Road, Toronto. That evening, Qiaoxi Guo, a waitress, was working the night shift.

[ 15 ] At 12: 23 a.m, two men entered Chiu Choy Boy Restaurant through the front door. Both men were Asian and were wearing dark t-shirts, jeans, and hats. One held a handgun and the other held a weapon that was either a screwdriver or a piece of a water pipe.

[ 16 ] The robbers took Ms. Guo ’s purse with her I.D. inside it. They dragged her with them to the kitchen to make demands for money. They then fled in a silver-coloured car.

[ 17 ] Just a half hour later, at approximately 1:00 a.m., the two men went to the Full House Chinese Restaurant. The restaurant is located at 4188 Finch Avenue East, approximately 2 kilometers away from Chiu Choy Boy Restaurant. This distance can be travelled in less than three minutes without traffic.

[ 18 ] Once again the men entered the front door, brandishing a handgun. Again, they were wearing dark t-shirts, jeans, and baseball caps. They ordered everyone on the ground. They entered into the kitchen area to make demands for money. They pointed the gun at a waitress, “Susan” Yaming Su, and dragged her to the till.

[ 19 ] The assailants then ran out of the restaurant. They were seen by a neighbouring restaurant owner, Mr. Way Wing Liu, getting into a “gold-coloured” Honda Accord with Ontario license plates.

[ 20 ] Sgt. Boulanger was the acting sergeant on patrol that night in the Scarborough area. He was called to attend at Chiu Chow Boy Restaurant after the robbery. He got a description of the suspects and their “silver” Honda getaway vehicle.

[ 21 ] Soon after, he attended at the Full House Restaurant after it had been robbed. Again, he got a description of the suspects and their getaway vehicle – this time it was a “gold-coloured” vehicle.

[ 22 ] At 2:45 a.m., Boulanger observed a silvery-gold Honda Accord vehicle at a McDonald’s restaurant on McCowan Road at the Woodside Square Mall. He pulled in behind the vehicle and got as close as three car lengths. When the occupants of the vehicle recognised that a police car was near them, they took off at a high speed. Sgt. Boulanger followed in pursuit. He activated his siren and lights. The drivers of the Honda did not slow down.

[ 23 ] They slid through a “T” intersection at Sandhurst Circle and Silvery Drive and turned onto Bethany Leigh Drive. As the car continued down Bethany Leigh Drive, the men opened the car doors and fled from the vehicle, while it was still moving.

[ 24 ] The driverless Honda hit a parked car and came to a rest. Sgt. Boulanger found Ms. Guo’s purse with her identification in the front passenger side floor of the vehicle. He called for reinforcements and a police perimeter was set up.

[ 25 ] During the pursuit, Sgt. Boulanger got close enough to see the men in the vehicle. He also noted that the Honda had a Quebec license plate with the number 804 QLV.

[ 26 ] At 3:40 a.m., the owner of 12 Bethany Leigh Drive came out to tell police that an Asian male had been banging on his patio door.

[ 27 ] Sgt. Boulanger went back to the vehicle and found a roll of coins in the vehicle along with a black baseball cap on the ground. P.C. Borneman also checked the vehicle and found a black t-shirt and hat and coins outside the car, consistent with the men having ditched their clothes.

[ 28 ] Two police officers in plainclothes spotted Mr. Ye and approached him with drawn weapons. They shouted, “Police! Don’t Move!” They ordered Mr. Ye to the ground. Mr. Ye obeyed, falling to the ground in front of them, and repeated three times, “I’m sorry, I’m sorry, I’m sorry.”

[ 29 ] By 3:48 a.m., Mr. Ye was taken into custody. He was strip searched. He resisted police control. Sgt. Boulanger identified him as the driver of the Honda. The second assailant was never caught.

[ 30 ] At the police station, Mr. Ye was given an opportunity to speak to duty counsel. He then provided an incriminating statement to the police authorities admitting his involvement in the robberies. Based on Mr. Ye’s incriminating statement, the police swore an Information and obtained a search warrant to search Mr. Ye’s residence.

[ 31 ] While awaiting the search warrant, the police sought the permission of the homeowner, Mr. Ye’s father, to secure the premises. With his nine year old grandson translating, Mr. Ye gave the police permission to secure the premises and enter the home at 5:30 p.m. The police did not begin their search until the warrant was issued and in their hands at 6:03 p.m. Only after then did they enter Mr. Ye’s room.

[ 32 ] In Mr. Ye’s room, the police found a cigarette pack filled with money, a pair of brown gloves with coins, a screwdriver and a black handgun (not imitation), all in plain view. The handgun was partially covered by some pieces of clothing. The police also found a brown BB gun shipping box sent from BuyAirSoft.Ca addressed to Mr. Ye at his parent’s home sent about two weeks before the commission of the XO Karaoke robbery. The bottom of the box had been used for target practice.

[ 33 ] Later, at Mr. Ye’s Preliminary Inquiry, Justice Bloomenfeld held that Mr. Ye’s statement at the police station was involuntary and inadmissible.

[ 34 ] The defence sought to exclude the incriminating evidence obtained at Mr. Ye’s residence on the basis of an alleged Charter breach from a warrant issued on information garnered from an involuntary statement. However, in the result, I found that the balancing required by R. v. Grant , 2009 SCC 32 favoured the admission of the evidence.

[ 35 ] The central issue at the trial was whether it was Mr. Ye who was involved in all three robberies. I made the following findings:

• Mr. Ye was responsible for the XO Karaoke robbery based on the DNA evidence and the circumstantial evidence, including the BB gun pellets and the BB gun found in Mr. Ye’s bedroom.

• Mr. Ye was responsible for the Chiu Choy Boy robbery based on the whole of the evidence, including that Ms. Guo’s purse was found in the vehicle Mr. Ye fled and Mr. Ye’s post-offence conduct.

• Mr. Ye was responsible for the Full House robbery based on the similar fact evidence between the Chiu Choy Boy robbery and the Full House robbery. I found that both robberies were of Chinese restaurants on major arterial roads and were conducted in much the same way, with the robbers entering through the front door and dragging a staff member to the kitchen to demand money. Although the getaway vehicles had different license plates, it was entirely possible that the assailants changed the license plate between robberies or that they used another vehicle.

[ 36 ] Thus, I found that Mr. Ye was one of the assailants in the three robberies and that he had used an imitation firearm in all three. I was satisfied of his guilt beyond a reasonable doubt of these charges and convicted him of them.

(Decision continues exactly as in the source.)