CITATION: R. v. Chui, 2015 ONSC 2490

COURT FILE NO.: 13-90000566-000

DATE: 20150430

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

YIN LEONG CHUI

Defendant

Jason Mitschele and David Morlog, for the Crown

Glen Orr, for the Defendant

HEARD: January 28, 2015

CLARK J.:

REASONS FOR SENTENCE

INTRODUCTION

[1] On the morning of May 29, 2012, a fire broke out at 5 Gordon Ave., in Scarborough. Firefighters and police attended. When firefighters entered the house, they found a clandestine methamphetamine laboratory. Since the accused was the lessee of the premises and the only person on site at the time, he was arrested and charged with producing methamphetamine, possessing it for the purpose of trafficking, possessing precursor chemicals and arson by negligence. After a trial by jury, the accused was convicted on all four counts.

THE FACTS

[2] The accused leased the house at 5 Gordon Ave. The owner, Ms. Yeung, bought it in late 2010 and the accused was her first tenant. The lease began November 1 of that year and, on its anniversary, the accused renewed the lease for another year.

[3] The house contained various chemicals required to produce methamphetamine, including toluene, numerous boxes containing bottles of acetone, a great many bottles of isopropyl alcohol (some still in boxes, others being cooled in a refrigerator in preparation for use), two kegs of iodine, bags of caustic soda, hypo-phosphorous acid, several industrial cylinders of hydrochloric anhydrous gas and approximately 20 gallons of naphtha gas, contained in industrial sized cans.

[4] Mr. Deasy, an expert from the Office of the Ontario Fire Marshall, testified at trial that the fire started on the kitchen stove and, more particularly, in a pot that was later determined to contain methamphetamine. The naphtha gas, a highly flammable substance, was stored in close proximity to the fire’s point of origin.

[5] In addition to the many chemicals, also on site was a host of equipment of the sort needed to produce methamphetamine, including, but not limited to, glass beakers, flasks, a measuring cup, a hot plate, cheese cloth, strainers, coffee filters, a box of latex gloves, pH strips, food processors (many of which contained a white powdery substance), and numerous vessels of various sizes and descriptions (ranging from small glass jars to large industrial buckets). There was also a large electric fan and a rudimentary ventilation system.

[6] The house’s attached garage contained a great deal of garbage, including some 7,260 empty packages of various “over the counter” cold and allergy medicines, including Reactine, Claritin, and Contac C. Each package would have originally contained what is known as a blister pack with ten separate tablets. The active ingredient of all of these remedies is either ephedrine or pseudoephedrine, one or the other of which is required to produce methamphetamine.

[7] As well as the substance found in the pot in which the fire started, numerous other substances seized at 5 Gordon Ave. also tested as being, or containing, methamphetamine.

[8] Methamphetamine is synthesized in several stages. In each stage, it takes a different form: liquid, oil, powder and, ultimately, the finished product, crystal. In total, 210 grams of crystalized methamphetamine were seized from 5 Gordon Ave. Also seized was methamphetamine in various forms corresponding to the aforementioned stages of production.

[9] Both at trial and on the sentence hearing, the court heard from Napol Shalbardjian, a chemist employed by Health Canada. On the sentence hearing, the witness explained a calculus he employed to estimate a hypothetical yield of methamphetamine from the amount of ephedrine and pseudoephedrine contained in the total number of tablets in the numerous empty blister packs that the police found at 5 Gordon Ave. The precise nature of the calculus is of no real moment for present purposes. Suffice it to say that, despite Mr. Orr’s vigorous challenge in cross-examination to Shalbardjian’s methodology, I am of the view that the witness incorporated enough safeguards against over-estimating into his calculus that his final estimate is, indeed, somewhat conservative. He postulated that the total amount of methamphetamine that could have been produced from the likely ephedrine/pseudoephedrine yield was 5.65 kilograms.

[10] The evidence at trial revealed that there was no food in the house, little in the way of clothing and only one bed. Based on that evidence and the evidence concerning the methamphetamine production, I find as a fact that the accused leased the house for the exclusive purpose of using it as a clandestine methamphetamine laboratory and that he used it for that purpose over the eighteen months during which he leased the premises. I also find that, on May 29, 2012, it was the very act of the accused “cooking” methamphetamine that caused the fire.

[11] I find as a fact that, when Ms. Sauer pounded on the front door of 5 Gordon Ave. to alert any occupants to the fire, the accused attempted to persuade her that everything was under control and that there was no problem, when in fact there was still a fire. I further find that, when he spoke to the Toronto Fire Services operator on Ms. Sauer’s cellular telephone, he attempted to dissuade her from dispatching firefighters. I am satisfied beyond any reasonable doubt that he did both these things to avoid having emergency personnel attend because he knew that they would discover his ongoing illegal and highly dangerous endeavour. I will return to this when I come to discuss aggravating factors.

POSITION OF THE CROWN

[12] Crown counsel suggests that on count 1, production of methamphetamine, the court should impose a sentence of 8 to 10 years’ imprisonment; four to five years’ imprisonment on count 2, possession of methamphetamine for the purpose of trafficking, and five years’ imprisonment on count 3, possession of precursor chemicals. Those sentences ought to be concurrent to one another, he suggests. On count 4, arson by negligence, Mr. Morlog suggests a sentence of two to three years is appropriate. That sentence should be served consecutively to the others, Mr. Morlog suggests, resulting in a total global sentence of between 10 and 13 years’ imprisonment.

POSITION OF THE ACCUSED

[13] On behalf of the accused, Mr. Orr suggests that the Crown’s position is predicated on factual assertions that have not been proven in this court and, as such, is excessive.

[14] Mr. Orr takes particular issue with the Crown’s suggestion that the accused should be sentenced on the basis of the total amount of methamphetamine that the empty blister packs would have yielded, 5.6 kilograms according to Shalbardjian’s estimate. To do as the Crown suggests would be an error in principle, Mr. Orr suggests, because the accused is only charged that he committed the offences on or about May 29, 2012, at which time only 212 grams of methamphetamine was present, such that, if the Court were to sentence him based on Shalbardjian’s estimate of 5.6 kilograms, it would have the effect of charging him for criminal acts that are outside the time frame of charges as framed in the indictment.

[15] Based on the facts upon which the court can safely rely, Mr. Orr argues, a sentence of four years’ imprisonment is appropriate.

DISCUSSION

Antecedents of the Accused

[16] The accused was 39 years of age at the time of his arrest and is nearly 42 now. He has a criminal record consisting of several convictions for possession of property obtained by crime. Those convictions were approximately 18 years old at the time the accused began this criminal endeavour with the rental of the house at 5 Gordon Ave. Further, compared to the offences of which he has just been convicted, the convictions on his record are relatively minor. Accordingly, I am prepared to treat him as a first offender.

General Principles of Sentencing

[17] To begin, I am mindful of the principles of sentencing set out in sections 718 and 718.1 of the Criminal Code. Subsection 10 (1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19 (CDSA) articulates similar sentencing objectives.

[18] Turning to sentencing in drug offences, in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, at 1039-1040, Cory J. spoke of the socioeconomic costs of illicit drug use in Canada:

The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity.

These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world.

[19] The enormous social costs associated with illicit drugs was also recognized by Lamer J., as he then was, in R. v. Smith (1987), 1987 64 (SCC), 34 C.C.C. (3d) 97 (S.C.C.), at pp. 123-4 where he stated:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon the victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs.

While Lamer J.’s remarks were in relation to the importation of illegal drugs, they are equally apposite the production of drugs, especially a drug as pernicious as methamphetamine.

Rehabilitation

[20] As in every sentencing, I must be mindful of the principle of rehabilitation: R. v. Stein (1974), 1974 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.), at 377. Rehabilitation is most important, of course, when dealing with youthful first offenders. In this case, although I have decided to treat him as a first offender, Mr. Chui is by no means youthful.

[21] I recognize that “[t]he primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, … these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation”: R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 at para. 17.

[22] Both sides acknowledge that a penitentiary sentence is required. I am mindful that “[t]he length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives”: R v. Borde (2003), 2003 4187 (ON CA), 172 C.C.C. (3d) 225 (Ont. C.A.), at para. 36. That said, while rehabilitation must never be lost sight of, this accused is not youthful.

[23] Further, rehabilitation is to be given less weight in cases in which, as here, the sentence is such that it will be a long time before the offender can be paroled: R. v. McKnight (1999), 1999 3717 (ON CA), 44 O.R. (3d) 263 (C.A.). See also R. v. J.J.A., [1994] B.C.J. No. 2640 (C.A.) at para. 15, and R. v. Leduc, 1995 1680 (ON CA), [1995] O.J. No. 3372, at paragraph 8, where the court noted:

[T]he real emphasis must be upon the protection of society by way of specific and general deterrence and denunciation of the offence. The eventual rehabilitation of the offender is a less significant consideration which is better left to be assessed by the parole authorities.

[24] There is little before me to warrant an optimistic view of this offender’s prospects for rehabilitation. The accused has a poor work record. That is not surprising, perhaps, since he does not have a high school diploma and, since leaving school, has done little, if anything, to upgrade his education or to acquire any marketable skills. In fairness, the accused was working at a cabinet making enterprise for a number of years before his arrest and, despite stringent bail conditions, managed to find a job late last year, such that he was working in the months leading up to this trial. Still, as near as I can determine, that is the only steady work he has had in the approximately 20 years since leaving school.

Retribution

[25] In passing sentence, the court is also obliged to consider retribution, not in the vengeful sense, but, rather, in the sense of conveying society’s denunciation of the abhorrent conduct: R. v. M. (C. A.), 1996 230 (SCC), [1996] 1 S.C.R. 500.

Deterrence

[26] The grave societal ill wrought by the illicit drug trade makes paramount the principles of denunciation and deterrence, both general and specific: R. v. Martin, [2001] O.J. No. 5205 (S.C.J.), at para. 10; R. v. Osei, [2002] O.J. No. 5601 (S.C.J.), at para. 11; R. v. Revizada, [2005] O.J. No. 421 (S.C.J.), at para. 20; R. v. Nero, [2007] O.J. No. 2316, (S.C.J.), at para. 62; R. v. Farquharson, [2000] O.J. No. 6006 (S.C.J.), at para. 9; and R. v. Singh, 2014 ONCA 791, [2014] O.J. No. 5347 (C.A.), at para. 123, citing R. v. Cunningham (1996), 1996 1311 (ON CA), 27 O.R. (3d) 786 (C.A.), at p. 791.

Predominant Principles of Sentencing

[27] As the discussion above reflects, in sentencing an offender the court must heed a number of different principles, which are sometimes in conflict in that the length of sentence required to properly serve one is inconsistent with the length of sentence required to serve another. In such a case, an appropriate resolution may require that one or more of those principles predominate: R. v. Szola, 1977 2041 (ON CA), [1976] O.J. No. 1229, 33 C.C.C. (2d) 572. In my view, the predominant principles in this case must be deterrence, both general and specific, and denunciation.

Mitigating Factors

[28] I find the following factors are mitigating:

(i) although the accused is not, strictly speaking, a first offender, as I have said, I am prepared to treat him as such; and

(ii) the accused has strong family support.

[29] Where an offender has strong family support, it will generally be considered to be a mitigating factor because, so it is thought, that support will assist in his rehabilitation, thereby reducing the length of any custodial period that might otherwise need to be imposed. That said, while I do not discount it entirely, I consider the accused’s family support to be of less significance in this case than it might be in some others for the following reason.

[30] I was told that, for quite some time prior to his arrest for these offences and afterward, while on bail, the accused lived with his father and his aunt in Mississauga. Both testified on the sentencing hearing. I was impressed by each of them and I accept their evidence. They presented a picture of an agreeable, respectful and helpful man, who, while on pre-trial release, behaved in an exemplary fashion in terms of fulfilling his bail conditions. It is obvious that they love him very much. It is equally obvious, however, that they see only the accused’s positive aspects.

[31] More importantly, neither his father nor his aunt seemed to have any idea that during the lengthy period of time he was living with them that he was involved in the offences of which he has now been convicted. That being the case, notwithstanding what I am sure are their best wishes and intentions for Mr. Chui, I am not persuaded that they are likely to be of much assistance in his rehabilitation.

[32] Where an accused is addicted to illicit drugs can be a mitigating factor on sentence in drug cases. In this case, however, there is no indication that the accused used any of the methamphetamine he was producing himself. Thus, no mitigation arises on this score.

[33] It is trite to observe that remorse, where present, is a mitigating factor. In this case, however, as he was perfectly entitled to do, Mr. Chui pleaded not guilty and stood his trial. Thus, while I do not treat his plea as an aggravating factor, he cannot now rely on remorse to mitigate what would otherwise be an appropriate sentence: R. v. Sawchyn, 1981 ABCA 173, [1981] A.J. No. 26, 60 C.C.C. (2d) 200 (C.A.); R. v. Champion, 2009 ONCA 184, [2009] O.J. No. 829; R. v. Valentini, 1999 1885 (ON CA), 43 O.R. (3d) 178, [1999] O.J. No. 251 (C.A.); R. v. Pavich, 2000 16971 (ON CA), [2000] O.J. No. 4209 (C.A.).

[34] When asked whether he wished to say anything prior to sentence being imposed, the accused rose and said simply, “I’m sorry”. His father and aunt also indicated that he has expressed to them that he is sorry. Despite his professed contrition, however, I am not persuaded that the accused is truly sorry for his misdeeds. Accordingly, while I do not discount his expressions of remorse entirely, they are simply too little too late to be of any real mitigating effect on sentence: R. v. Cleyndert, [2006] O.J. No. 4038, 2006 33851 (C.A.), at para. 10.

Aggravating Factors

[35] The case has the following aggravating factors:

(i) the pernicious nature of methamphetamine;

(ii) the quantity of methamphetamine involved;

(iii) the length of time over which production was ongoing at 5 Gordon Ave.;

(iv) the fact that the accused used private property belonging to a third party to commit the offence: CDSA s. 7(3)(a); and

(v) the fact that the production constituted a potential health hazard in a residential area: CDSA, s. 7(3)(c).

Pernicious nature of methamphetamine

[36] It is indisputable that methamphetamine is a pernicious drug that does serious physical harm to those unfortunate to fall prey to its addictive powers.

Quantity of methamphetamine cocaine involved

[37] The quantity actually found on the premises at the time of this investigation is not insignificant. The quantity standing alone, without considering other aggravating factors, would warrant the sentence suggested by the defence and, arguably, an even lengthier disposition.

Length of time production was ongoing at 5 Gordon Ave.

[38] The accused was producing methamphetamine at 5 Gordon Ave. for 18 months. It is unnecessary to consider Mr. Orr’s argument that the Crown’s suggested range invites the court to sentence the accused for wrongdoing not specifically charged on this indictment. The protracted period during which this enterprise was extant can properly be considered a highly aggravating factor.

Abuse of private property belonging to a third party

[39] Further aggravating is the fact that the accused rented the premises for the sole purpose of cooking methamphetamine. In so doing, he had to know that his conduct would grievously contaminate the landlord’s property: CDSA s. 7(3)(a). I will say more of this below.

Potential health hazard in a residential area

[40] More aggravating still is both the toxic and volatile nature of the chemicals fact involved in the process of manufacturing methamphetamine. I find as a fact that the accused had to know that he was putting the residents of the area at substantial risk: CDSA s. 7(3)(c).

Similar Sentences for Similar Offences and Offenders

[41] An accused is entitled to be sentenced in keeping with sanctions imposed on similarly situated offenders in similar circumstances: Criminal Code s. 718.2(b).

[42] I have considered the cases proffered by both parties. I have also considered a number of other cases.

[43] In R. v. Ling, 2012 ONSC 654, [2012] O.J. No. 635, McWatt J. found three accused guilty of producing methamphetamine, as well as possession of other drugs for the purpose of trafficking. The drugs had a street value of more than $12 million.

[44] In the course of imposing sentence, McWatt J. at para. 16 relied on the following evidence from an RCMP drug expert:

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 methamphetamine 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.

On appeal, the court observed that methamphetamine is a “very addictive” and a “dangerous drug”: 2014 ONCA 808, [2014] O.J. No. 5485 (C.A.), at para. 12.

[45] As noted by McWatt J. in Ling, at para. 30, “[m]ethamphetamine 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.”

[46] In R. v. Cote, 2002 BCCA 29, at para. 10, Donald J.A. referred to methamphetamine as “a dangerous drug having highly addictive properties and the potential for inducing aggressiveness and violent behaviour. It is said that methamphetamine poses a much greater risk to the user’s health than does cocaine by causing brain damage.” Those remarks were reiterated by Ryan J.A.in R. v. Francis, 2008 BCCA 309, at para. 19, in R. v. Bamdad, 2005 BCSC 755, at para. 32, and R. v. Georgiev, [2014] B.C.J. No. 1915, 2014 BCCA 246, at paras. 8-10.

[47] At trial in Ling, McWatt J. sentenced Ling, a 46 year old first offender, to 16 years’ imprisonment. The two co-accused, one a first offender, the other with an earlier conviction for impaired driving, received sentences of 14 years’ imprisonment. On appeal, observing that the three accused were producing methamphetamine in a large scale operation that was being conducted entirely for profit, the court upheld the sentences imposed at trial.

[48] In R. v. Koh, 1998 6117 (ON CA), [1998] O.J. No. 5425 (C.A.), at para. 37, Finlayson J.A. speaking for the Court, held that “[j]udicial notice may be taken of two kinds of facts: facts which are so notorious as not to be the subject of dispute amongst reasonable persons; and facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy.” He went on to say that, once such a finding of fact is made in one court, “judges in subsequent cases can take judicial notice of the fact.” That said, I take judicial notice of the above quoted findings in Ling, Cote, Francis, Bamdad, and Georgiev.

[49] In R. v. Wu, [2014] O.J. No. 4846 (S.C.J.), a companion case to Ling, the accused was found guilty of possession of methamphetamine for the purpose of trafficking. The accused had a prior conviction for possession of marijuana for the purpose of trafficking and was on parole at the time of the offence. Thorburn J. imposed a sentence of 8 years’ imprisonment, before taking pre-sentence incarceration into account. In reaching that decision, she relied on the following authorities:

32 In R. v. A.S. (2010), 2010 ONCA 441, 258 C.C.C. (3d) 13 ONCA 441, the offender had a lengthy criminal record and was a drug addict. He did not traffic drugs until asked to do so by an undercover officer. He received a sentence of 6 years for trafficking 7 kilograms of methamphetamine and 2 kilograms of marijuana.

33 In R. v. Oraha [2012] ONSC 1439, the offender had no prior criminal record. He was sentenced to 7 years for possession for the purpose of trafficking 3 kilograms of methamphetamine. The offender was found to be a high level commercial trafficker of cocaine, methamphetamine and MDMA.

34 In R. v. Chanmany [2013] O.J. No. 4172; the offender had no prior criminal record. He was given a sentence of 9 years for possession for the purpose of trafficking 7 kilograms of methamphetamine. He was found to be “an active wholesaler of cocaine and methamphetamine.”

35 In R. v. Bernard [2012] O.J. No. 3116 (Sup. Ct) the offender had no prior criminal record. He was sentenced to 12 years in jail for three counts of trafficking and possession for the purpose of trafficking 12 kilograms of methamphetamine.

[50] In Cunningham, at p. 791, the court held that “absent exceptional or extenuating circumstances, the range of sentence for first-offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary.” Although Cunningham dealt with importing, that range is also apposite where the accused is convicted of producing a hard drug. There is no difference in principle between an accused who imports a hard drug and one who produces it; either way he is the principal means by which the drug becomes available to the Canadian consumer.

Pretrial Release

[51] The accused had some restrictions on his liberty while on bail. I will, accordingly, subtract four months from his sentence to reflect that: R. v. Downes: 2006 3957 (ON CA), [2006] O.J. No. 555, 205 C.C.C. (3d) 488, (Ont. C.A.).

Pretrial Custody

[52] From May 29, 2012, the date of his arrest, to and including July 26, 2012, the date on which he was released on bail, the accused spent 59 days in custody. From January 19, 2015, the date of his conviction on these charges, at which time I cancelled his bail, today’s date, he has spent a further 101 days in custody. In total, then, he is entitled to credit or 160 days of pre-sentence custody. Both sides agree that I should credit that time at a rate of 1.5 to 1 (R. v. Summers, [2014] S.C.J. No. 26, 2014 SCC 26), for a total diminution of 240 days. Accordingly, I will deduct a further eight months from what I consider to be a fit disposition in this case.

SENTENCE

[53] On Count 1, production of a Schedule I substance, s. 7 of the CDSA provides a maximum punishment of life imprisonment. In the circumstances of this case, I have decided that a fit sentence is one of eight years’ imprisonment and that is the sentence that I hereby impose.

[54] On Count 2, possession of a Schedule I substance for the purpose of trafficking, s. 5(2) of the CDSA provides a maximum punishment of life imprisonment. I have decided that a fit sentence is one of five years’ imprisonment.

[55] On Count 3, possession of precursor chemicals, s. 7.1 of the CDSA provides a maximum punishment of ten years less a day. I have decided that a fit sentence is one of three years’ imprisonment.

[56] On Count 4, arson by negligence, the Criminal Code provides a maximum punishment of five years. A fit sentence in this case, in my view, is one of three years’ imprisonment.

[57] As noted above, the Crown takes position that the sentence on Count 4 should run consecutively to the sentences imposed on the other counts. I have some difficulty with that proposition on the facts of this case, but I need not decide the issue because, even if that were so, in the circumstances of this case the principal of totality would dictate that I should make it concurrent. Accordingly, the sentences on all four counts will run concurrently.

[58] In light of the deprivation of your liberty, both on bail and in pre-trial custody, I will reduce the sentence by one year. Accordingly, I hereby sentence you to a period of 7 years’ imprisonment.

ANCILLARY ORDERS

Section 109 Order

[59] The Crown seeks, and the accused does not oppose, the imposition of an order pursuant to s. 109(1) of the Criminal Code. I hereby order that the accused be prohibited from possessing any of the things mentioned in s. 109(2)(a) for a period commencing today and ending ten years from the date on which he is released from custody on the sentences I have just imposed. I further order that the accused be prohibited from possessing any of the things mentioned in s. 109(2)(b) for the rest of his life.

DNA Order

[60] The Crown seeks, and the accused does not oppose, an order pursuant to s. 487.051 requiring the authorities to take from the accused such samples of his blood or other bodily substance as are reasonable required for purposes of inclusion of his DNA profile in the national DNA databank. Since possession of a controlled substance for the purpose of trafficking is a secondary designated offence, the making of the order is discretionary: s. 487.051(1)(b).

[61] In exercising that discretion, having considered the fact that these orders are generally accomplished by the taking of one sample of blood, by means of a small prick with a sterile lancet, or, in the alternative, by taking a buccal swab, I conclude that the order sought will involve only a negligible interference with the offender’s privacy and personal security. On the other hand, having considered the absence of any convincing indication of remorse on the part of this offender, I am of the view that the public is entitled to the assurance that, should Mr. Chui reoffend, the authorities will have at their disposal the tools necessary to enable them to detect that he is the culprit. Order to go accordingly.

Forfeiture Order: [CDSA ](https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html#sec16_smooth)s.16

[62] The Crown seeks an order under s. 16 of the CDSA forfeiting what remains of all personal property seized by the police at 5 Gordon Ave. The accused does not oppose such an order.

[63] I am satisfied on a balance of probabilities that the property in question is “offence related property” and that the CDSA offences of which the accused has been convicted were committed in relation to that property. I am required to order, and do so order, that the property be forfeit to Her Majesty the Queen in Right of Canada, to be disposed of according to law by such member of the Queen’s Privy Council for Canada, as may be designated for the purposes of subparagraph 16 (1) (b) (ii).

Restitution Order

[64] Relying on s. 738 of the Criminal Code, the Crown seeks an order that the accused make restitution to Ms. Yeung in the amount of $32,070. The amount is readily ascertainable.

[65] Attached to the victim impact statement are photocopies of an invoice for $20,340 ($18,000 plus GST) for repairs to 5 Gordon Ave. and cancelled cheques attesting to Ms. Yeung having paid the contractor that amount. Also attached is an invoice from a window and door company in the amount of $5,550, which also appears to have been paid. Having heard and seen the evidence of the damage, the amounts claimed seem entirely reasonable.

[66] I am advised, and I find as a fact, that Ms. Yeung’s insurer refused to compensate her. Although she does not explain why, since the damage was the direct result of obvious criminal activity, presumably the insurer took the view that, even though Ms. Yeung had no involvement in that activity, it was, nevertheless, not liable under the policy. In any event, I find as a fact that Ms. Yeung is out of pocket the amount she claims for repairs.

[67] The victim impact statement also refers to lost rent, namely, that which the accused ought to have paid under the terms of the lease during the period June 1 to September 30, 2012, inclusive. Since, as of May 29, 2012, the term of the extant lease did not expire until October 31, 2012, and since the property has to this day not been rented to anyone else, it is not clear to me why Ms. Yeung has not also claimed for at least the loss of rent for the month of October 2012, but she has not. At the agreed upon monthly rent, the total she claims under this head is $6,180. Exhibit 2(g), which is a copy of the lease, stipulates $1,545 as the monthly rent and attached to Ms. Yeung’s victim impact statement are copies of a series of cheques in that amount. Therefore I find as a fact that she is out of pocket the amount she claims by way of lost rental revenue.

[68] I am mindful that restitution orders should be made “with restraint and caution” (R. v. Devgan (1999), 1999 2412 (ON CA), 136 C.C.C. (3d) 238 (Ont. C.A.), at para. 26, citing R. v. Zelensky, 1978 8 (SCC), [1978] 2 S.C.R. 940) and not as “a mechanical afterthought to a sentence of imprisonment: R. v. Castro, 2010 ONCA 718, 261 C.C.C. (3d) 304, at para. 23, citing R. v. Siemens (1999), 1999 18651 (MB CA), 136 C.C.C. (3d) 353 (Man. C.A.), at para. 10. Further, where such an order is contemplated, the court must take care to ensure that the overall sentence imposed is neither unduly harsh nor excessive in terms of totality.

[69] In R. v. Fitzgibbon, 1990 102 (SCC), [1990] 1 S.C.R. 1005, [1990] S.C.J. No. 45, at para. 14, Cory J., speaking for the court, held that restitution orders (compensation orders as they were then known) “can be an effective means of rehabilitating the accused because this order quickly makes him directly responsible for making restitution to the victim.”

[70] In this case, Mr. Orr submits on behalf of the offender that the victim has failed to adequately document her losses. I respectfully disagree. There is no question, but that the property was seriously damaged. I fail to see what else Mr. Orr would reasonably expect Ms. Yeung to provide.

[71] In the alternative, assuming the court were to accept that the amounts claimed have been made out, Mr. Orr submits that his client does not have the financial wherewithal to comply with such an order.

[72] I appreciate that when considering whether to make such an order, the court should be mindful of any apparent inability on the part of an offender to comply. That said, the ability to pay is only one of a number of factors the court is to take into account, and, indeed, is not predominant among those factors: Castro, at para. 28; R. v. Yates (2002), 2002 BCCA 583, 169 C.C.C. (3d) 506 (B.C.C.A.), at paras. 12-16. “[T]he present or future ability of the accused to pay restitution are relevant considerations, but the weight to be given to those considerations will vary according to the specific circumstances of the offence and of the offender”: Yates, at para. 20.

[73] Insofar as what is sought is a free standing restitution order that does not oblige the accused to pay in the short term, as would be the case if restitution were tied to a probation order, and in light of the fact that he still has, potentially at least, “many years of productive life ahead of him” (Castro, at para. 39), I would not be troubled by any present inability to pay even had it been made out. With respect, however, Mr. Orr has offered no evidentiary support for his contention that the offender is unable to pay.

[74] Further, even if the accused had demonstrated an inability to pay, I would, for the following reasons, still be inclined to make the order sought.

[75] Even when it is apparent that an accused will not be able to make restitution, the circumstances giving rise to the loss may dictate that an order of restitution is nonetheless appropriate, as, for example, where the damage arises as a consequence of a breach of trust: Yates, at para. 17. The Court of Appeal for Ontario recently has endorsed this approach in R. v. Wa, 2015 ONCA 117, where, at paras. 12 and 13, speaking for the court, Gillese J.A. stated:

When determining whether to impose a restitution order, the sentencing judge must consider the offender’s ability to pay. However, where the circumstances of the offence are particularly egregious, such as where a breach of trust is involved, a restitution order may be imposed even if there does not appear to be any likelihood of repayment: R. v. Castro, 2010 ONCA 718, 102 O.R. (3d) 609, at para. 28. As the sentencing judge found, the fraud in this case was a clear breach of trust, which was particularly odious given the charitable nature of the work performed by the victim.

Moreover, when assessing ability to pay a restitution order, the court may consider what disclosure has been made respecting where the money is or has gone. In fraud cases, bald assertions by offenders that they have no ability to make restitution are entitled to little weight when the offender has not explained where all of the stolen assets have gone: Castro, at para. 34.

That principle is germane here. As stated above, I have found as a fact that the accused intended from the outset of the lease of the property to use 5 Gordon Ave. as a clandestine laboratory. That was, at the risk of stating the obvious, a purpose other than that for which the accused represented that he wanted to lease the property. It is equally self-evident that Ms. Yeung would never have leased the property to him had she known his intended purpose. By leasing the premises under false pretences and using it as a methamphetamine laboratory, the accused committed a breach of trust or, if not technically a breach of trust, something so closely akin to one that this principle applies nevertheless: R. v. Shields, 2004 NWTSC 17, at para. 9.

[76] With this principle in mind, I am of the view that the conduct in this case was sufficiently egregious to warrant making the order sought. Order to go in the above stated amount.

R. A. Clark J.

Released: April 30, 2015

CITATION: R. v. Chui, 2015 ONSC 2490

COURT FILE NO.: 13-90000566-000

DATE: 20150430

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

YIN LEONG CHUI

Defendant

REASONS FOR SENTENCE

R. A. CLARK J.

Released: April 30, 2015