CITATION : R. v. Lin Aung Nyan, 2016 ONSC 3948
COURT FILE NO.: CR-15-90000178 DATE: 2016/07/11
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – LIN AUNG NYAN Accused
Counsel: Hafeez Amarshi, for Her Majesty the Queen Misha Feldman, for the Accused
HEARD: June 13, 2016
REASONS FOR SENTENCE
DUNNET J.: (Orally)
[1] Lin Aung Nyan has been convicted of possession for the purpose of trafficking in 116.98 grams of Methylone, 54.38 grams of Ketamine and 162.86 grams of Cannabis (marijuana).
[2] On July 28, 2014, the police received a 911 call in relation to an assault in an apartment on Wade Avenue in Toronto. When they arrived, Mr. Nyan’s father said that he had been assaulted by his son. The police saw no apparent injuries to the father.
[3] The police had some knowledge that there had been a violent home invasion at the apartment a few weeks earlier. They asked the father if they could enter his apartment to locate Mr. Nyan. Inside the apartment, they came upon a locked door with loud music emanating from Mr. Nyan’s bedroom.
[4] When they received no response to their demands to open the door, they entered the room to search for Mr. Nyan. They saw a disemboweled dog lying on its side in a cage and drugs in plain view. They obtained a warrant to search the bedroom.
[5] On execution of the search warrant, the police found the following items:
- on the floor beside the bed, a bucket containing bags of marijuana and two weigh scales, one of which was supporting a glass bowl containing marijuana residue;
- on the floor at the foot of the bed, suspected MDMA in capsules in a plastic case and six clear vials with lids, five of which were in a Ziploc bag;
- beside the bed, bags of empty capsules and suspected MDMA capsules in a Ziploc bag;
- on a shelf beside the bed, a bag of suspected MDMA;
- on the TV shelf, a plastic container with empty capsules with lids;
- on the closet shelf, three cell phones and a debt list; and
- a Ziploc bag of suspected Ketamine powder.
[6] It was the expert opinion of Police Officer John Margetson that Mr. Nyan was a street level dealer of Ketamine and marijuana and a street to mid-level dealer of Methylone. The 780 capsules of Methylone had a street value of between $7020 and $9360. The 360 vials of Ketamine had a street value of between $1620 and $2200 and the marijuana had a street value of between $1200 and $1500.
[7] Mr. Nyan brought an application pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms seeking an order to exclude the evidence seized during the execution of the search warrant.
[8] In my reasons, I concluded that the entry into Mr. Nyan’s bedroom was a justifiable use of police powers, the police conduct was lawful and the search was justified. I held that even if the evidence had been obtained in a manner that infringed his rights, admission of the evidence would not bring the administration of justice into disrepute.
[9] After my ruling, Mr. Nyan admitted that he possessed the drugs for the purpose of trafficking and a conviction was registered on all counts.
[10] The Pre-Sentence Report states that Mr. Nyan is a twenty-four-year-old Canadian citizen who came to Canada from Thailand with his parents at the age of five. He grew up with an alcoholic father and his family was not close. He did not endure any physical abuse.
[11] Mr. Nyan did not complete high school and his employment history in retail sales was sporadic. He has no income and is currently supported by his brother. He has never used cocaine or heroin and drinks in moderation. He does not believe that he needs counselling or treatment.
[12] The Crown seeks a sentence of thirty months and a lengthy period of probation. The defence submits that in addition to pre-sentence custody of ten months and giving credit for one and one-half days for each day served, an appropriate sentence should be ninety days in custody to be served intermittently.
[13] Counsel for the accused advised the court that the accused had enrolled in an adult learning program commencing in two weeks.
[14] Ketamine is included as item 14(1) of Schedule I to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“the Act”). It “is dangerous to the unsuspecting user as a date-rape drug”: see R. v. Kwok, 2015 BCCA 34. Methylone is included under item 19(8) of Schedule 1 to the Act as an analogue to MDMA. Subsection 2(1) of the Act defines an analogue as “a substance that, in relation to a controlled substance, has a substantially similar chemical structure.” The target market for both drugs is young people.
[15] In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, Cory J. stated at pp. 1039:
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.
[16] There is nothing before the court that tends to mitigate the gravity of these offences. Mr. Nyan was not an addict-trafficker. He was operating a commercial enterprise involving significant quantities of different drugs and his motivation to engage in this enterprise was financial profit.
[17] The only mitigating circumstances in this case are that Mr. Nyan is relatively young and has no criminal record. While on bail for these offences, he breached a condition of his recognizance and as a consequence, he served ten months in custody.
[18] The paramount objectives in sentencing in this case are the denunciation of Mr. Nyan’s conduct and the deterrence of others who might be tempted to engage in similar behaviour.
[19] I adopt the comments of Goldstein J. in R. v. Carelse-Brown, 2013 ONSC 7042, at para. 36:
… The need to deter like-minded individuals in the face of the significant profits that can be made from drug trafficking is obvious. The need to deter Mr. Carelse-Brown in the future is equally obvious, which is why a short term of incarceration should not be seen as merely the cost of doing drug business.
[20] In Carelse-Brown, at para. 28, Goldstein J. held that there was no evidence that the accused had ever had a lawful job or progressed very far in his education, and that other than a vague plan to take business courses at some point in the future, “it is difficult to discern how Mr. Carelse-Brown intends to right himself and become a productive member of society.”
[21] The same can be said of Mr. Nyan. He did not complete high school. Since his arrest and release from custody, he has not worked or upgraded his education. He has no income. It was not until the eve of his sentence hearing that he enrolled in an adult learning program. There is no other plan for his future and no family support other than a comment from his brother to the author of the Pre-Sentence Report that he would like to see Mr. Nyan return to school and become gainfully employed.
[22] I have reviewed the case law provided by counsel and in addition I have considered the following cases in determining the appropriate sentence in this case: R. v. Paper, 2010 ONCJ 88, aff’d 2011 ONCA 56; R. v. Martin, 2011 ONCJ 423; R. v. Kelly, 2009 ONCJ 667, R. v. Moxley-Peters, 2013 ABPC 249; and R. v. Daniels, 2015 ONSC 2520.
[23] While sentencing is an individualized process, and each case must be decided based on its own unique set of facts, I am of the opinion that an appropriate sentence for Mr. Nyan is twenty-three months. The sentence is imposed on the conviction for possession for the purpose of trafficking in Methylone with concurrent terms of eighteen months on the conviction for possession for the purpose of trafficking in Ketamine and three months on the conviction for possession for the purpose of trafficking in marijuana.
[24] Crown counsel made no submissions on the credit to be applied for pre-sentence custody. Pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, I allow one and one-half days’ credit per day for ten months of pre-sentence custody. Therefore, Mr. Nyan is sentenced to eight months’ incarceration. As Karakatsanis J. explained in Summers, at para. 49, “enhanced credit accounts for both loss of eligibility for parole and early release (circumstances with quantitative impact) and the harshness of the conditions (circumstances with qualitative impact).”
[25] I am satisfied that a lengthy term of probation will address the imperative of rehabilitation by recognizing that Mr. Nyan is a young man without support and in need of direction and supervision. Thus, the term of incarceration will be followed by a term of two years’ probation.
[26] In addition to the mandatory terms, Mr. Nyan will:
- report to a probation officer as and when required;
- abstain from the purchase, possession, and consumption of controlled drugs except as authorized by law;
- abstain from owning, possessing or carrying any weapon, as defined by the Criminal Code;
- abstain from acquiring or possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, as defined by the Criminal Code;
- not possess or apply for a gun licence or a firearms acquisition certificate; and
- attend an accredited educational institution or make reasonable efforts to find and maintain suitable full-time employment.
[27] The unusual circumstances of this case involve an unexplained disembowelment of an animal in Mr. Nyan’s bedroom. Therefore, I impose a term of probation to require Mr. Nyan to actively participate in counselling or treatment programs as recommended by his probation officer and sign necessary releases so that the officer can confirm his participation in any counselling or treatment programs recommended.
[28] In addition, there will be a weapons prohibition order under s. 109(2)(a) of the Criminal Code for ten years.
[29] The offences before the court are secondary designated offences pursuant to s. 487.04 of the Criminal Code. I have taken into consideration the accused’s lack of a criminal record, the nature of the serious offences for which he has been found guilty, the circumstances surrounding the commission of the offences and the impact such an order will have on his privacy and security of the person. While Mr. Nyan has no criminal record, his possession of drugs and drug related instruments at his home and the seriousness of the offences lead me to conclude that it is in the best interests of the administration of justice to make an order for the taking of a DNA sample pursuant to s. 487.051(3)(b) of the Criminal Code.
Dunnet J.
Released: July 11, 2016
COURT FILE NO.: CR-15-90000178 DATE: 2016/07/11
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – LIN AUNG NYAN Accused
REASONS FOR JUDGMENT Dunnet J.
Released: July 11, 2016