R. v. Zhou, 2016 ONSC 3233

CITATION: R. v. Zhou, 2016 ONSC 3233

COURT FILE NO.: CR-14-3100

DELIVERED ORALLY: May 16, 2016 at 1 p.m.

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Yi Feng Zhou

Accused

COUNSEL:

Jennifer Simpson Rooke, for the Crown

Kim Schofield, for the Accused

HEARD: April 29, 2016

REASONS FOR SENTENCE

POMERANCE J.:

[1] Yi Feng Zhou is to be sentenced on one count of cultivating marijuana, and one count of theft of hydro. Some time before sentencing hearing, he, on his own motion, surrendered into custody. He did this in order to serve a period of pre-sentence custody. He now seeks a conditional discharge, in order to avoid the immigration consequences that would flow from a conviction. He argues that, because he served a term of jail at the front end, a conditional discharge would not offend the principles of sentencing.

[2] I cannot agree. I will explain why in the reasons that follow.

THE OFFENCE

[3] Mr. Zhou was found to be tending 692 plants in various stages of growth in five rooms of a house containing a grow operation. 8.7 kilos of marijuana were seized from the residence. The house was rigged with a hydro by-pass. Mr. Zhou was charged along with several other individuals, each of whom elected a trial. The Crown accepted a plea by Mr. Zhou to two counts – one alleging cultivation of marijuana, and the other alleging theft of electricity. While the grow operation was significant, it was agreed that Mr. Zhou’s role in the enterprise was limited. He tended to the plants in exchange for a fee. He was not responsible for the hydro by-pass, but was aware of it. Mr. Zhou undertook this criminal activity in order to make money. He was not himself an addict. At the time, he could not find legitimate employment, and was trying to support his family.

[4] The proceeds received by Mr. Zhou were modest. Nonetheless, his resort to criminal activity for profit is an aggravating factor that bears on the need for general deterrence.

THE OFFENDER

[5] Mr. Zhou is in his late 30s. He was born in China where he lived until 2002, when his parents immigrated to Canada. The offender had two sons with his first wife, one born in 2004 and one in 2006. The couple separated in May 2009. Mr. Zhou has custody of the two boys. In 2011, Mr. Zhou married a second wife, who was in Canada on a student visa. It was during this marriage that the couple moved to Windsor, where the current offences took place. In March 2012, Mr. Zhou’s second wife gave birth to a son. The couple split shortly thereafter. Since fall of 2012, Mr. Zhou has been in a relationship with another woman, who is in Canada on a visitor’s visa. In January 2015, she gave birth to Mr. Zhou’s fourth child, a daughter. The family lives in Mr. Zhou’s sister’s home in Markham, Ontario. Mr. Zhou wishes to marry his current partner and to that end, wishes to sponsor her immigration to Canada.

[6] Mr. Zhou has been employed since August 2013 as a shipping clerk. He is reported to be a reliable and valued employee.

[7] Mr. Zhou is not a stranger to the justice system. In 2008 he was convicted of driving while impaired and dangerous operation of a motor vehicle. In 2010 he was convicted of two assaults. It has, however, been some time since he has engaged in criminality. The offences before the court were committed in 2011, some four and a half years ago. Mr. Zhou has, by all accounts, taken steps to turn his life around. His pre-sentence report is positive, describing his strong ties to his family and his employment. His move to Markham marked a positive change, as he has the direct support of his extended family.

[8] Mr. Zhou pleaded guilty to the offences and earlier waived his right to a preliminary inquiry.

COLLATERAL CONSEQUENCES

[9] In R. v. Pham, 2013 SCC 15, the Supreme Court of Canada held that a sentencing judge can take collateral, or indirect, immigration consequences into account in fashioning a fit and proportionate sentence. As held by Wagner J. at para 11, collateral consequences are not, strictly speaking, aggravating or mitigating factors. They are personal circumstances of the offender and bear on the prospect of rehabilitation.

[10] At the same time, Wagner J. stressed in para 16 that: “These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation”. Nor should it lead to a special range of sentencing options where deportation is a risk. The sentence must ultimately be proportionate to the gravity of the offence and degree of responsibility of the offender. The question is whether accounting for collateral consequences takes the sentence outside of the recognized range. It would, for example, be open to a court to reduce a sentence from 2 years to 2 years less a day to avoid deportation. The difference of one day would not affect the fitness of the disposition, but it might carry significant implications for immigration status.

[11] Since Pham, other scholarly judgments have addressed the scope of the collateral consequence doctrine. In R. v. Stanberry, 2015 QCCQ 1097, Healy J. held that the court may consider the consequences for the offender herself and her family members. In that case, the offender was being sentenced for importation of cocaine. The collateral effect of a jail sentence was, not only to separate the offender from her children, but to separate the children from one another. This would lead to “incalculable adverse effects”. As Healy J. explained in paras. 18-20:

In this case the collateral consequences are significant. Obviously a term of imprisonment entails that Ms. Stanberry, a single mother, will be separated from her children. This might be unfortunate but not exceptional. In itself it would not justify a significant adjustment of an otherwise appropriate sentence. But there are two further consequences.

First, the evidence presented makes clear that Ms. Stanberry’s children will be separated from each other for the duration of her term of incarceration. The effects of this fragmentation of the family in the development of young children, even long after the expiry of the term of imprisonment, are not subject to precise measurement: but they are certain to follow. Second, Ms. Stanberry will be separated from her younger daughter who suffers from serious medical difficulties that will have long-lasting effects.

These two collateral consequences are not mitigating factors because they have no bearing on the gravity of the offence or the degree of the offender’s responsibility. They are collateral in the sense that they are incidental to the terms of an appropriate sentence. In every other sense these collateral consequences will be direct and they will endure with great force not only for the duration of the term of imprisonment but beyond its expiry. They will entail what can only be described today as incalculable adverse effects both for the offender and her children. They are properly regarded, as the Court said in Pham, as “personal circumstances of the offender.” The collateral consequences in this case will certainly magnify the severity of the sentence and for this reason they must be taken into account.

[12] While recognizing the gravity of collateral consequences, Healy J. concluded that they could not be avoided in the case before him. A conditional sentence of imprisonment would keep the family together, but would be disproportionate and unfit, given the gravity of the crime. As Healy J. put it: “[s]uch a sentence would fail to meet the requirements of an exemplary sentence that gives due expression to the objectives of denunciation and deterrence in cases concerning the importation of over one kg of cocaine.” Healy J. affirmed that “any adjustment for collateral consequences cannot justify a deviation from the requirement for a proportionate sentence in the circumstances of the case” (para.24).

[13] Subsequently, in R. v. Howe [2015] NBQB 75 Ferguson J. considered Pham and Stanberry in a case involving an aggravated assault. In imposing a sentence of 15 months imprisonment, Ferguson J. considered, among other things, the social and economic hardship that the offender’s family would experience if he were placed in jail. As in Stanberry, the case could not justify imposition of a conditional sentence. However, the collateral consequences had some impact on the duration of the jail sentence imposed.

[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.

IMMIGRATION CONSEQUENCES IN THIS CASE

[15] Mr. Zhou is a permanent resident of Canada and therefore subject to the provisions of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). Section s.36(1) provides as follows:

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.

[16] If Mr. Zhou is convicted of an offence punishable by at least 10 years, or if sentenced to a term of more than six months imprisonment he will be deemed inadmissible to Canada. Upon being found inadmissible, a report will issue under s.44(1) of the Act and he will be subject to a removal order.

[17] In 2011, the offence of producing cannabis carried a maximum penalty of 7 years, while theft of electricity carried a maximum penalty of 10 years. A conviction on the theft count would trigger s. 36(1) of the IRPA, as would a sentence of more than six months on either count. Were a sentence of more than six months imposed, Mr. Zhou would have no right to appeal a finding of inadmissibility, by virtue of s.64(1) of the Act.

[18] Removal from Canada would lead to dire consequences for Mr. Zhou and his family. He would be forced to leave the country he has called home for close to 14 years. He would face the prospect of separation from his extended family who live in Canada as well as his four children, each of whom were born in Canada. If found to be inadmissible, Mr. Zhou would be barred from sponsoring the immigration of his common law spouse, with whom he has an infant daughter. Defence counsel advised that Mr. Zhou is the only person in a position to sponsor his common law spouse. Absent a sponsorship, she faces removal from Canada and no meaningful prospect of return.

SHOULD A DISCHARGE BE IMPOSED?

[19] On behalf of Mr. Zhou, Ms. Schofield argues that the immigration consequences of a conviction and/or sentence of more than six months would be grossly disproportionate to the moral blameworthiness of Mr. Zhou’s actions. It is said that these consequences can be prevented through the imposition of a conditional discharge. It is said that the fitness of sentence can be assured given Mr. Zhou’s pre-sentence custody, the prospect of a period of probation, and an increased victim surcharge.

[20] The Crown opposes the defence position, arguing that the court should impose a sentence of three years in the penitentiary. The position of the Crown does not find support in the case law, including the case law filed by the Crown in this case. Accepting that every case turns on its own facts, it would seem that the range of sentence in this case is between 4 and 12 months. I rely on the nature of the substance at issue, the limited role played by Mr. Zhou in the enterprise, his pleas of guilt, and his rehabilitative efforts in the last four years.

[21] Ms. Schofield filed several authorities in which courts have imposed discharges – both conditional and absolute – for CDSA offences. (see e.g. R. v. Defrancesco [2015] O.J. No.6485; R. v. Coombs [2015] O.J. No.6484 R. v. Tam [2013] O.J. No. 6499; R. v. Chhor [2013] O.J. No. 6498; R. v. Le [2012] O.J. No. 5802; R. v. Eng [2015] O.J. No. 6486; R. v. Phuong Thi-Bich Vu, unreported decision of the Ontario SCJ, dated December 5, 2013; R. v. Yong Su, unreported decision of the OCJ, dated July 19, 2012; R. v. Andrade [2015] O.J. No. 6483 (OCJ); and R. v. La [2016] O.J. No. 1557 (SCJ).

[22] A discharge would not, in the ordinary course, be available to Mr. Zhou. I say that because of the size and sophistication of the grow operation and the fact that he has prior convictions, albeit for unrelated offences. In this case, some period of custody is necessary to mark the gravity of the offence. The defence agrees, but says that the jail time has been served, in the form of pre-sentence custody. It is said that this clears the way for imposition of a conditional discharge, without offending the principle of proportionality.

[23] I disagree for the following reasons.

1. Mr. Zhou is not entitled to enhanced credit for time served

[24] Mr. Zhou surrendered into custody on March 16, 2016. Earlier, he served 12 days before being released on bail. He has therefore served approximately 10 weeks of pre-sentence custody. Ms. Schofield argues that Mr. Zhou is entitled to credit for pre-sentence custody on a 2 for 1 basis. She correctly points out that the offence pre-dates the Truth in Sentencing Act, SC 2009, c 29 which limited such credit to a maximum of 1.5 to 1. With 2 for 1 credit, Mr. Zhou has served the equivalent of approximately 5 months in custody.

[25] If Mr. Zhou had been detained in custody, he would be entitled to credit on a two for 1 basis. But that is not what happened. Mr. Zhou was released on bail. He chose to surrender into custody prior to the imposition of sentence. He did this hoping that it would increase the likelihood of a conditional discharge. I will address the prospect of a discharge shortly. But for present purposes, is not clear to me that Mr. Zhou is entitled to credit on anything more than a 1 for 1 basis.

[26] Enhanced credit – both before and after the Truth in Sentencing amendments - is generally based on two factors: 1) the absence of earned remission for pre-sentence custody; and 2) the reality that conditions of pre-sentence custody tend to be more onerous than those in post –sentence custody. (see R. v. Safarzadeh-Markhali, 2016 SCC 14, at para. 1). As noted by Karakatsanis J. in R. v. Summers, 2014 SCC 26: “… the quantitative rationale for the practice of granting enhanced credit is to ensure that the offender does not spend more time behind bars than if he had been released on bail.” Absent enhanced credit, a person detained prior to trial will serve more time in custody than a person released prior to trial, even if they receive the same custodial sentence. Similarly, remand facilities are often known for less than desirable conditions, including overcrowding and lack of available programming.

[27] The burden of pre-sentence custody demands that, as a general rule, there be enhanced credit for time spent in remand. Enhanced credit is a necessary corollary of pre-trial detention to ensure fairness and parity in sentencing. However, enhanced credit not a free standing benefit that can be “purchased” through a well-timed surrender into custody. To allow otherwise is to inject an artificiality into the sentencing process. It is to say that an offender can voluntarily expose himself to remand conditions, and then plead compensation for that voluntary exposure.

[28] In some cases, a well-timed bail application might facilitate a disposition of time served. But in that instance, the detention is still an incident of the process, rather than an entirely orchestrated event. An offender should not serve more time in jail as a result of pre-sentence custody. But he should not be able to choreograph less time in jail through a deliberate manipulation of the surrender date.

2. An additional period of custody is required.

[29] The present term of custody – 10 weeks – does not adequately reflect the gravity of the offence and the moral blameworthiness of the offender. The sentence must consist of an additional period of real jail.

3. To label the disposition a discharge is to improperly circumvent parliament’s will in matters of immigration

[30] When is a discharge not a discharge? When it is a custodial sentence in disguise.

[31] The strategy proposed by the defence in this case is creative. It does have appeal. In an ideal world, Mr. Zhou would be spared the immigration consequences of conviction. The removal of Mr. Zhou from Canada will have significant impact on him and his family.

[32] I am sympathetic to Mr. Zhou’s circumstances, but I am not empowered to circumvent the statutory consequences set out in the IRPA. The Act speaks for itself. Parliament’s intent is clear. Upon conviction for an offence punishable by at least 10 years, the offender is deemed to be inadmissible in Canada.

[33] Pham allows a sentencing judge, in his or her discretion, to consider immigration consequences, and to modify sentence to account for them. However, the scope of this authority is limited in at least two ways. First, the sentence must be fit and proportionate. The court cannot rely on immigration, or other collateral consequences, to craft a sentence that falls below the appropriate range. Second, the court is not at liberty to consciously circumvent Parliament’s will in matters of immigration. In Pham, the court quoted with approval the following reasons of Doherty J.A. in R. v. Hamilton (2004) 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.) at para. 156:

…[T]he risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. As indicted above, however, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender. [emphasis added]

[34] The problem in this case is that the proposed discharge is not really a discharge. It is a pretext; the discharge is a custodial sentence by another name. There is no question but that Mr. Zhou’s sentence must include a term of custody, whether served after the date of sentence, or reflected as credit for pre-sentence custody. This is not a case in which a discharge, in the traditional sense, would ever be available to Mr. Zhou. A discharge would not reflect the gravity of the offence. It would not reflect the fact that Mr. Zhou has 4 prior convictions (albeit for unrelated offences). It would be contrary to the public interest to impose a genuine discharge. It follows that it is contrary to the public interest to impose a fictional discharge, particularly where the objective is to thwart the directives of the IRPA.

[35] This is not just an exercise in semantics. It is true that we are discussing the label to be attached to the sentence. One might ask: What’s in a name? A term of jail, by any other name, is as restrictive of liberty. But the labels at issue – conviction v. discharge - carry great significance. It is important that these concepts be accurately described. If nothing else, it is important to maintain the integrity of the discharge, lest misuse of the concept reduce its mitigating value.

[36] While I am not prepared to impose a discharge in this case, I can consider the IRPA in determining the quantum of jail to be served by Mr. Zhou. I am aware that, if his sentence exceeds six months, he will be statutorily deprived of the right to appeal a finding of inadmissibility. If the sentence is less than six months, he will maintain his right of appeal. Given those consequences, I choose to impose a sentence that is less than six months. I see this as the type of modification that is contemplated by the SCC in Pham. A sentence of 5 and a half months would be fit, as would a sentence of 6 and a half months. Choosing the former instead of the latter does no violence to sentencing principles, yet it does ameliorate the harshness of consequences under the IRPA. The choice is consistent with Wagner J.’s directive in Pham at para. 11 that: “…when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation”: see R. v. Nassri, 2015 ONCA 316.

[37] Therefore, I sentence Mr. Zhou to 5 and one half months in custody on Count 3. Mr Zhou is to receive credit on a one for one basis for the 10 weeks that he has already served. Therefore, the remaining time to be served in jail is 12 weeks or 3 months.

[38] A sentence of 3 months concurrent is imposed on Count 4.

[39] In addition, I impose the following ancillary orders:

i) A s. 109 order is imposed for a period of 10 years.

ii) A DNA order shall be made on Count 3 under s. 487.051 of the Code.

iii) A forfeiture will issue in accordance with the order signed by the Court.

Delivered Orally: May 16, 2016