ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-9-0000198-0000

DATE: 20120214

BETWEEN:

HER MAJESTY THE QUEEN – and – WAN SHUN LING, YAOQUAN JIAN and YAN SHI Defendants

Faiyaz Alibhai, Bari Crackower , for the Crown

E. Bruce Olmstead for the Defendant, Mr. Ling S. Lyon for the Defendant, Mr. Jian Linda Tang for Defendant, Mr. Shi

HEARD: September 12, 13, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29, 2011; October 19, 20, 2011; November 21, 2011; January 19, 2012.

McWatt J.

REASONS FOR SENTENCE

[ 1 ] Messrs. Wan Shun Ling, Yaoquan Jian and Yan Shi were each found guilty after a trial on the following charges:

S. 5(2) CDSA: Possession for the Purpose of Trafficking (MDMA);

Possession for the Purpose of Trafficking (ketamine);

Possession for the Purpose of Trafficking (methamphetamine).

S. 7(1) CDSA: Producing MDMA;

Producing ketamine;

Producing methamphetamine.

The Facts

[ 2 ] On one day in October, 2007, the Royal Canadian Police found 12.2 million dollars worth of ecstacy pills at 8 Pipers Green in Toronto. Messrs. Yaoquan Jian and Yan Shi had previously been living in the house making them. Mr. Wan Shun Ling was moving into the house to continue making the pills.

[ 3 ] All this came to light because the R.C.M.P. were informed four days before about suspiciously high purchases of precursors used to produce synthetic narcotics. They followed 3 males that day. Mr. Ling, one of the males, was observed by police to drive some of the chemicals to 8 Piper’s Green and leave them at the house in a residential neighborhood. Mr. Ling was observed on three other occasions at the home. The second time was later that evening, October 16, and the two further occasions were on October 19, 2007. It was on the last occasion when Mr. Ling was leaving the residence that he was arrested by police.

[ 4 ] That same evening, but just prior to Mr. Ling’s final entrance into the home, Mr. Jian, Mr. Shi and a third male were observed by police to enter the premises and begin moving items out and into a van. As they left the driveway of the home, Mr. Ling and another male pulled up.

[ 5 ] Mr. Jian and Mr. Shi were stopped by police a short distance away. Inside their van were 2 bags and 1 bucket of ecstacy pills. In total, there were 25 kgs of these tablets with a street value of approximately $870,000. The pills contained the three substances charged in the indictment.

[ 6 ] Both Mr. Jian and Mr. Shi had been living at the house months prior to October 19, 2007. They were at the house that night moving belongings they had left behind. Both men had keys to the residence. Both men had been producing the pills.

[ 7 ] Mr. Ling was moving into 8 Piper’s Green around the time of his arrest. He had purchased garbage bags, motors, dust masks and a meat grinder for the purpose of producing the methamphetame tablets.

[ 8 ] I conclude, from all of the evidence I have before me, that each of the defendants were central operators in the production of the ecstacy pills. Each had control over 8 Pipers Green. Each had a stake in the drugs produced there. The only difference between Mr. Ling and the other two defendants was that he was moving into the laboratory. They had finished their work and were moving out.

The Expert Evidence

[ 9 ] The residence itself was obviously a clandestine drug laboratory containing bedrooms on the second floor. Each door had locks so that the various persons living there could maintain privacy. Each bedroom was sparsely furnished.

[ 10 ] The main floor and basement housed the production and drying areas for the pills.

[ 11 ] Although $12.2 million worth of drugs were on the premises on its last day, the lab’s true potential would far exceed that amount. The pill presses found in this operation could produce 4,000 to 6,000 pills per hour. There were two functioning pill presses found, meaning that as many as 12,000 pills could be produced each hour when the operation was at full capacity.

[ 12 ] There were also two other pill presses on scene and a back log of “powder” ready to be processed into tablets.

[ 13 ] Final drying and mixing of the drugs and binding materials occurred at the residence along with colour coding of the various batches of pills.

[ 14 ] The facility was an economic based operation producing “ecstacy” tablets. Its only limitations to production capacity were the amount of MDMA, methamphetamine, katemine and other chemicals available to the operators.

[ 15 ] Douglas Culver of the R.C.M.P. testified that the laboratory at 8 Piper’s Green was the largest he had seen in Canada (but for one other) in his twenty years of specializing in drug investigations.

[ 16 ] His evidence about synthetic drug production and the three drugs found at this laboratory is as follows. None of it has been challenged by the defendants.

Methamphetamine is one of the predominant synthetic drugs being produced in domestic clandestine laboratories. Economic-based laboratories are becoming increasingly prevalent. They are larger (capable of producing in excess of 5 and 10 kilograms), more sophisticated and are operated by organized crime. Some of these laboratories are poly-drug and/or multi-site operations, and others are tableting facilities pressing powder into tablets. While addiction-based laboratories are smaller operations, they also have similar and significant impacts on communities, and cause environmental damage. Clandestine laboratories, especially those producing methamphetamine, continue to proliferate and are being reported in provinces across Canada. Some provinces have had little or no clandestine drug lab activity but they are not isolated from the repercussions of methampheteamine production in nearby areas. Clan lab locations are increasingly found in urban neighborhoods – even high rise apartments are being utilized. Lab operations are using more varied and dangerous methods of methamphetamine synthesis. These labs contain chemicals that are explosive, flammable, reactive and toxic. The threats to public safety from explosion, fire, poison gas, groundwater contamination and hazardous by-products associated with clandestine labs are likely to increase with the proliferation of synthetic drug manufacture.

The real problem with methamphetamine though, is its addictive nature. Methamphetamine stimulates the central nervous system (CNS) by forcing the release of dopamine molecules from nerve terminal storage sites. Dopamine is directly related to the pleasure reward system of the brain. Dopamine and methamphetamine are also similar in structure and chemical makeup.

Taking methamphetamine causes all of the dopamine stored in the neurons to be released spontaneously, causing an extreme euphoria in the user. The state of mind caused by methamphetamine is that person’s peak of happiness. The total release of dopamine results in a sensation whereby this person cannot feel any more euphoric than at that point in time. It is this euphoric state that keeps the user coming back for more. Other positive side effects of the drug are increased alertness, increased energy, elevated self-confidence, persistent activity and work, increased talkativeness, increased sexual pleasure, increased strength and loss of appetite.

Euphoria is often followed with depression, thereby causing the craving for more methamphetamine to get back to the state of euphoria again, and thus we now have a chronic user. Other unwanted side effects include disorganized physical activity, tremors, tooth decay (meth mouth), formication, delusional parasitosis, erective dysfunction, kidney damage, liver damage and death.

With all this interference going on in the dopamine system, it is only a matter of time before the user causes injury to components of that system. Chronic use of methamphetamine causes damage to the brain.

MDMA is not a true hallucinogen but best described as an entactogen. The user gets a feeling of well being and euphoria. It doesn’t change the senses but heightens them to the extreme. The physical side effects that occur concurrently are a sense of energy, endurance, postponement of sleep and fatigue. One of the major side effects of MDMA is its ability to raise body temperature and dehydrate the body. Accompanied by physical exertion, such as non-stop dancing, the problem is exacerbated. MDMA, in these circumstances, can elevate the body temperature as high as 42 ° C. At this temperature the blood clots uncontrollably. Although this danger can be allayed by consumption of fluids, the user is unaware of their body temperature and quite often feels cool.

There are several other undesired effects as well. There is a lot of muscular tension, nausea, bruxism (teeth grinding) and involuntary leg movement (similar to restless leg syndrome). Undesired mental effects include hyperactivity, insomnia and depression. The author of Generation E (1998), Simon Reynolds, states “In neurochemistry, there is no free lunch, and MDMA comes with a plethora of costs and catches …. The major repercussion of the drug is the comedown a few days later, which involves fatigue, emotional burnout, irritability, and mood swings between elation and desolation ….”. “Taking Ectasy is like going on an emotional spree, spending your happiness in advance”.

Continuous consumption of MDMA desensitizes the body and the sense of euphoria is replaced by an amphetamine buzz. With sustained and excessive use, it may take up to 6 weeks for ones levels of neurochemicals in the brain to return to normal. MDMA has what is described as a diminishing returns syndrome and thus little to no physical addiction ever occurs. As far as an emotional addiction, however, after using MDMA, everyday normal life seems dreary and uneventful. This is where we find the potential for mental addiction.

After mental addiction occurs, the chemically programmed “less is more” effect of MDMA leads the user to cheap, more stimulating and psychoactive compounds such as methamphetamine, ketamine, LSD and a whole array of combinations, all trying to achieve that elusive state of euphoria they found in early MDMA abuse.

Ketamine has been used in human and veterinary medicine for the induction of anesthesia since 1972. More recently ketamine has been utilized as a drug of abuse for its hallucinogenic properties. It has also been used as a drug by the criminal element to facilitate sexual assaults.

Ketamine can produce hallucinations in certain dosages; however, it may also result in irrational behavior, nausea, vomiting, and blurred vision. More severe effects include cardiac distress and seizures.

Ketamine is a dissociative anesthetic, and thus produces symptoms that enable a drug facilitated sexual assault to occur. Use of this drug may result in CNS depression, impairment of thought processes, and amnesia.

Organized crime groups specialize in different aspects of the synthetic drug trade which include: the diversion and trafficking of precursor chemicals; domestic production; the trafficking of controlled substances, and the smuggling of methamphetamine precursor chemicals from source countries, into Canada.

[ 17 ] The most notable part of Sergeant Culver’s evidence was the fact that the ecstacy pills produced at 8 Piper’s Green contained methamphetamine, which is highly addictive. The pills, themselves, however, were presented as MDMA and produced in a way which would have a purchaser believe they were consuming only MDMA. Instead, the users of these pills would be consuming methamphetamine, ketamine – and other drugs – and would be at risk of becoming addicted to them.

[ 18 ] The pills produced at the laboratory were made in different colours with particular logos in order to target various age groups and genders. The pills were produced like this to make the consumption of the drugs more palatable to teenagers and young adults.

[ 19 ] Stephen J. Kish, Ph.D., head of the Human Brain Laboratory for the Centre of Addiction and Mental Health (CAMH) in Toronto, provided expert opinion on the addictive properties of methamphetamine and its harmful effects on the human body as it relates to the seizure of that drug at 8 Piper’s Green.

[ 20 ] Dr. Kish also reviewed and concurred with the opinion of Sgt. Culver about the harm of the substances produced at the laboratory.

[ 21 ] His opinion included the following:

(1) Addiction, more than all other harms, is the central and most significant harm that can be caused by methamphetamine because there are no effective medications to prevent drug relapses;

(2) Low daily doses of methamphetamine or amphetamine (the clinically used metabolite of methamphetamine, which causes similar harms to humans), in the range of that used for the treatment of ADHD, would be tolerated by most adults, but can cause side effects. These doses of the drugs are provided to patients under careful medical supervision and can have positive effects;

The methamphetamine seized from 8 Piper’s Green was not of this kind and it is likely that “high” doses of it taken acutely or chronically causes death in some individuals due to overactivation of the cardiovascular system. The number of these deaths is, at present, unknown;

(3) There is evidence that amphetamines can cause psychosis – a thought disorder. The dose required and the time of onset of a psychotic episode is highly variable amongst different subjects;

(4) The chronic use of methamphetamine can damage brain dopamine in animals. This raises the possibility that dopamine neuron damage might also occur in human users of the drug, resulting in Parkinson’s disease. A study in California of a large number of methamphetamine users suggests that heavy dose users might be at higher risk for development of the disease.

[ 22 ] Brent N.L. Ellen, Program Specialist, Office of the Fire Marshall, Emergency Planning and Strategic Development offered an opinion about hazards associated with chemicals used during the manufacture of synthetic drugs, generally, and at 8 Piper’s Green, specifically.

[ 23 ] It is his opinion that many of the hazards associated with clandestine laboratories originate from ingredients used and the by-products produced.

[ 24 ] Clandestine drug laboratory fires often force evacuations of entire apartment buildings or residential neighborhoods due to concerns about inhalation of chemicals in smoke. The possibility of fire and explosion, the use of corrosive agents, including acids, sodium hydroxide, and the reaction byproducts such as phosphine gas can harm the “cooks”, the neighboring public and first responders (fire fighters, police personnel, paramedics, emergency medical technicians and hospital employees). In addition, those responsible for the cleanup and people reoccupying improperly decontaminated areas can also be put at risk.

[ 25 ] By-products of clandestine laboratory drug production are often poured down drains of apartments and homes resulting in serious chemical and thermal burn hazards. One pound of produced methamphetamine may generate up to five or more pounds of hazardous waste.

[ 26 ] The risks to neighborhoods in which these laboratories are set up can range from fires and explosions to exposure of children to chemicals during the brain developmental years of their lives.

[ 27 ] None of the expert evidence in this case was diminished by any challenge from the defence.

The Position of the Parties

[ 28 ] The Crown asks for a jail sentence for each of the defendants in the range of 16 to 18 years in the penitentiary. The Crown asks that Mr. Ling be sentenced to a term of imprisonment at the upper end of that range while submitting that Mr. Jian and Shi’s sentences could fall at the lower end of it.

[ 29 ] Counsel for Mr. Ling submits that a sentence in the range of about 7 to 8 years in jail is fit when his pretrial custody is included. Mr. Jian’s counsel argues that a sentence of 5 years is appropriate for him. Mr. Shi’s counsel submits that a sentence of 3 – 4 years in the penitentiary satisfies the principles of sentencing.

The Case Law

Production

[ 30 ] Methamphetamine was moved from Schedule III to Schedule I of the Controlled Drugs and Substances Act in 2005. As a result, it became as seriously sanctioned by the justice system as heroin and cocaine. [ R. v. Villanueva [2007] O.J. No. 858 at para. 27 ; R. v. Liu [2009] O.J. No. 2390 at para. 24 ; R. v. Nguyen 2011 ONSC 6229 at para. 13] .

[ 31 ] The Crown submits that Messrs. Ling, Jian and Shi should be sentenced as severely as importers of cocaine because as “cocaine is not indigenous to Canada … without the importer … there would be no cocaine problem” [ R. v. Hamilton and Mason 2004 5549 (ON CA) , [2004] O.J. No. 3252 (Ont. C.A.) at para. 105] , methamphetamine is not indigenous to Canada and without the producer of the drug, there would be no methamphetamine problem in Canada [ R. v. Nguyen , supra at para. 18 ; R. v. Liu , supra at para. 24]. I agree.

[ 32 ] I also agree that the domestic manufacturing of synthetic drugs has the potential to be more significant than imported drugs due to the relative ease of obtaining the ingredients locally as opposed to the hurdles that have to be overcome to import drugs internationally.

[ 33 ] The context of all of these considerations remains general deterrence and denunciation which defence counsel do not disagree are the paramount sentencing objectives in this case.

[ 34 ] In R. v. Nguyen , supra, I sentenced the defendant to five years in jail after a guilty plea for producing $249,000 of methamphetamine. The full potential of the lab he was found in was $3,500 million. The Crown could not assert that the laboratory could actually produce its potential. Mr. Nguyen was in his early 20’s and a first offender. He was burned in the fire that took police to the laboratory. He was truly contrite and an excellent candidate for rehabilitation. He was sentenced to 5 years in jail, but I accepted that a range, suggested by the Crown, of 6 to 8 years in jail was appropriate. Mr. Nguyen was not in charge of the laboratory.

[ 35 ] In R. v. Malanca 2007 ONCA 859 , [2007] O.J. No. 4782, the Ontario Court of Appeal reduced a life sentence imposed by the trial judge to 19 years in jail for the importing of 270 kgs. of cocaine and 16 kgs. of hashish into Ontario from Jamaica. Mr. Malanca was found to be the boss in the conspiracy to import the drugs. He was a youthful first offender with a good work record and a supportive family.

[ 36 ] Mr. Lyle Niemi [ R. v. Niemi [2008] O.J. No. 5830 (S.C.J.) ] was sentenced to 14 years in jail for importing 593 kgs. of cocaine and 37 kgs. of hashish. The crime was a “one-off” for this first offender who had positive antecedents and family support. The court found, however, that Mr. Niemi did not initiate or pursue drug importation, but was a willing participant in it.

[ 37 ] Eberhard J. quite poignantly put the following at paragraph 21 of his reasons for sentence:

“The weight of the case law leaves no doubt that for the importation of large quantities of cocaine, the repugnance of a lengthy jail term for a first offender must give way to the principles of denunciation and general deterrence.”

[ 38 ] In the case of R. v. Frost [2011] ONSC 6448, the defendant was sentenced to 16.5 years in jail, the same sentence as his partner received in a conspiracy to import 1,360 kgs. of cocaine. Mr. Frost was found to be a key player in the conspiracy, but was a first offender with marketable job skills, a supportive family, health issues and remorse for his actions.

Possession for the Purpose of Trafficking methamphetamine

[ 39 ] The range of sentence for Possession for the Purpose of Trafficking methamphetamine is about 6 to 8 years in jail where a guilty plea has been entered and depending on the amount of the drug involved. [ R. v. Villanueva, supra; R. v. Nguyen unreported (5 June 2008), Kitchener, O.C.J.; R. v. Liu, supra; R. v. Houssameddine unreported (19 October 2010) Toronto O.C.J.; R. v. Nguyen , supra ].

[ 40 ] The defence have presented me with various cases in support of their positions on sentence. They do not apply to the facts of this case.

The Offenders

[ 41 ] There is no evidence that any of the defendants uses or is addicted to drugs.

Mr. Ling

[ 42 ] Mr. Ling is 55 years old, married and has two children in their early twenties. He and his family lived in Hong Kong in the upper middle class until they immigrated to the United States in 2002 and 2003. His family remains in Brooklyn, New York. He has been in Canada since his arrest in 2007 as a result of his bail conditions. Since he has no permanent status in the U.S., he may be deported to China after serving his sentence.

[ 43 ] Mr. Ling’s son, Alex, has dropped out of his post secondary school studies to become the primary income earner for the family since his father’s arrest.

[ 44 ] Mr. Ling’s son, Alex, described his father as “always supportive” and a good father who allowed him and his sister to succeed in college due to their upbringing. Alex believes that his father is innocent of the charges, which are out of character for him.

[ 45 ] Mr. Ling had an import / export business in China between 1983 and 2003 specializing in “large shipments of raw materials and finished products” which required that he travel extensively throughout Europe and Asia. Once in the U.S., he became a home renovator. He has not worked since his arrest.

[ 46 ] Mr. Ling has no criminal record. He asserts that he was wrongly convicted.

Mr. Jian

[ 47 ] Mr. Jian is a youthful first offender at 24 years of age. He is single with no dependants. He was born in China and reports that his upbringing was good. He came to Canada on November 11, 2003. He has permanent residence status.

[ 48 ] After living with his father in Canada from 2003 to 2006, his father “vanished” one day and Mr. Jian has not seen him since. He has been told that his father owed people money and that is why he disappeared. Mr. Jian’s mother lives in Toronto, but he has not resided with her, but instead has lived with friends over the years.

[ 49 ] Mr. Jian’s level of education is unknown, although he claims to have graduated from grade 12 in Toronto, but he does not speak English.

[ 50 ] It is unclear, except for his say-so, what he did for a living before the charges. He now claims to have worked in a hair salon while on bail.

[ 51 ] Mr. Jian maintains his innocence of the charges.

Mr. Shi

[ 52 ] Mr. Shi is 46 years old, born in China to an upper middle class family. He came to Canada about 13 years ago in about 1998 after escaping from prison in China where he was serving a 3 years term of imprisonment for distributing videos of the 1989 Tiananmen Square massacre. In China, he acquired a false passport, which allowed him to leave the country.

[ 53 ] Mr. Shi resided in Toronto upon his arrival here. He married and divorced after one year. He has no children.

[ 54 ] Prior to his arrest, he was working as a chef and receiving financial support from the Canadian government. Mr. Shi’s employer described him as reliable.

[ 55 ] Mr. Shi has a 2005 conviction for Impaired Driving. He was fined and successfully completed 6 months of probation.

[ 56 ] He maintains his innocence of the charges.

Mitigating and Aggravating Factors

[ 57 ] The mitigating factors of this case are:

(1) All of the defendants were employed and considered good workers by their families and co-workers. They have worked while in custody;

(2) Mr. Jian is a youthful first offender;

(3) Mr. Ling is a first offender and Mr. Shi has only one prior conviction for impaired driving from over six years ago.

[ 58 ] The aggravating factors of this case are:

(1) Each of the defendants shows no remorse for the offences and seem devoid of any awareness of the consequences of their behavior on the community in which they live;

(2) Mr. Jian and Mr. Shi were not just mules delivering the pills they were found with in their vehicle. They were actually living at the house and an integral part of the production scheme at 8 Piper’s Green. The 25 kgs. of pills they had were being taken by them to their new apartment. They had enough control over the laboratory to be able to freely take the drug product as they wished;

(3) Mr. Ling was obviously a trusted member of the group producing the pills. He met with Mr. Girouard who had purchased the precursors from the chemical company. He delivered them to 8 Piper’s Green. He purchased paraphernalia to produce the drugs. He came from the U.S. to do so and had years of expertise in the import / export business. This is significant in the context that Canada is an exporter of ecstacy. Unchallenged expert evidence established that it would not be unusual that someone in the upper echelons of the criminal production group be present at the laboratory. There was evidence from Mr. Jian that Mr. Ling was moving into the house. He appeared to be part of the group controlling the laboratory on October 19, 2007;

(4) All three defendants come from good families. None is a user of any of the substances found at 8 Piper’s Green. Therefore, they were involved in the production enterprise for purely financial motives;

(5) Methamphetamine is highly addictive. There are physical risks to use of the drug including cardiovascular and brain damage. There is no medication to treat the addiction to methamphetamine and behavioural therapy has limited efficacy;

(6) MDMA and ketamine, although less addictive than methamphetamine, are substances dangerous to human health. MDMA can be mentally addictive and lead to addiction to more serious drugs in order for the user to achieve the euphoria that early MDMA use brings. Ketamine abuse can lead to depression, thought impairment and amnesia;

(7) The pills found on October 19, 2007 were packaged as ecstacy or MDMA so that people would believe they were ingesting the less addictive drug. In fact, the pills contained methamphetamine which is more dangerous than MDMA;

(8) The ecstacy pills are imprinted with various logos and turned out in different colours to make them palatable for ingestion by teenagers and young adults – a deadly marketing ploy;

(9) Canada is a major exporter of ecstacy;

(10) This ecstacy laboratory was the largest ever seen in Canada by police – except for one other;

(11) The value of the pills seized from this laboratory on October 19, 2007 alone was $12.2 million. The potential yield of the laboratory is exponentially greater.

Sentences

[ 59 ] I find that Mr. Ling was part of the ongoing production of the pills at 8 Piper’s Green and was in shared control of the operation.

[ 60 ] In all of the circumstances and because of the mitigating and aggravating factors outlined above, Mr. Ling shall be sentenced as follows:

Producing MDMA – 16 years in jail;

Producing methamphetamine – 16 years in jail;

Producing ketamine – 16 years in jail;

Possession for the Purpose of Trafficking MDMA – 10 years in jail;

Possession for the Purpose of Trafficking methamphetamine – 10 years in jail;

Possession for the Purpose of Trafficking ketamine – 10 years in jail;

[ 61 ] All sentences are to be served concurrent to the first.

[ 62 ] Mr. Ling has served about 15 months of pretrial custody. The sentence left to be served by him, then, is 14 years and 9 months in jail.

[ 63 ] Mr. Jian and Mr. Shi are equally as responsible as the other for their roles in the production of the drugs at 8 Piper’s Green. When they lived there and up to October 19, 2007, they had control over the residence by having keys to it. They were stakeholders in the drugs produced there and took drugs for their own profit when moving out.

[ 64 ] They shall each serve a sentence of 14 years, concurrent, on each of the Production charges and a sentence of 8 years each, concurrent, on the Possession for the Purpose of Trafficking counts.

[ 65 ] Mr. Jian has served about 4 months in pretrial custody. The remainder of his sentence is 13 years 8 months in custody.

[ 66 ] Mr. Shi has served 5 months in pre-trial custody and, therefore, has a sentence remaining to be served which equals 13 years and 7 months.

[ 67 ] Each of the defendants shall be subject to an order pursuant to s. 109 of the Criminal Code for 10 years. Each shall provide a sample of their DNA to be housed in the national DNA data bank.

McWatt J.

Released: February 14, 2012

COURT FILE NO.: 09-9-0000198-0000

DATE: 20120214

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – WAN SHUN LING, YAOQUAN JIAN and YAN SHI Defendants

REASONS FOR SENTENCE McWatt J.

Released: February 14, 2012