SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ZHI XIN LIN
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE M. FUERST
on June 7, 2017 at NEWMARKET, Ontario
APPEARANCES:
K. Healey Counsel for the Crown L. Lebovits Counsel for the Defendant
Wednesday, June 7, 2017
REASONS FOR SENTENCE
FUERST, J. (Orally):
Introduction
Zhi Xin Lin pleaded guilty to production of phencyclidine, which is more commonly known as ketamine, and to possession of phencyclidine for the purpose of trafficking.
It is common ground between Crown and defence counsel that a lengthy penitentiary term must be imposed.
The Circumstances of the Offences
Mr. Lin was part of a network of people who produced and trafficked ketamine in the Greater Toronto Area. Specifically, he was a “cook” who used precursor chemicals to produce dozens of kilograms of ketamine to be trafficked.
Mr. Lin worked out of a synthetic drug laboratory located in a house in a residential neighbourhood north of Toronto. This was one of the first synthetic drug laboratories for the production of ketamine found in Canada.
Mr. Lin was arrested after a police investigation that involved surveillance, tracking, and covert searches. He told the police that he had been making ketamine for approximately two years. He said that he produced two to five kilograms of ketamine per month. He admitted to buying equipment at LabEquip.
Mr. Lin also admitted that he paid rent for the house where the lab was located, the house next door, and a storage unit where chemicals, equipment, and tools for making ketamine were kept. The police observed him buying equipment, unloading equipment and precursors at the storage unit, discarding waste from the production of ketamine at a mall, and dumping chemicals in the backyard of the house next to the lab. He was seen regularly in and around both the house where the lab was located and the house next door.
He also delivered suitcases full of ketamine to associates at an apartment in Toronto.
Mr. Lin occupied a bedroom in the house where the lab was located. At the time of his arrest, the police found ten kilograms of ketamine in his bedroom, along with almost $90,000 in cash, a recipe for making ketamine, and documents relating to the purchase of chemicals and laboratory equipment.
Both the house where the laboratory was located and the house next door were ordered demolished due to chemical contamination. Another residential property involved in the enterprise, but not frequented by Mr. Lin, was demolished due to contamination.
Overall, from the four locations, the police seized 77.5 kilograms of ketamine, in excess of $400,000 in cash, and large amounts of precursor chemicals and laboratory equipment.
Ketamine is commonly used as a veterinary anesthetic. In humans, it is associated with hallucinogenic and psychedelic effects. It is sometimes used to facilitate sexual assaults. It has a high incidence of side effects and toxicity, including seizures. Chronic use can cause irreparable damage to the bladder, urinary tract and kidneys, and serious deficits in short and long-term memory.
The Circumstances of Mr. Lin
Mr. Lin is 56 years old. He has no prior criminal record. He is a permanent resident of Canada. His immediate family, composed of his wife, son, and son’s family, all live in Canada.
I was given no information that Mr. Lin has a history of legitimate employment in Canada.
I was told that Mr. Lin is very likely to be deported from Canada to China as a consequence of his offences. He will be separated from his family as a result.
Mr. Lin was fully co-operative with the police on his arrest. He spent 20 days in jail before he was released on bail.
He has been under house arrest for about two years without incident. For the first of those years, his bail also required that he remain in Ontario with a local surety. After that time, he was permitted to live in Montreal with family, but was still bound by a house arrest condition.
In court, Mr. Lin told me that he knows he did something significantly wrong.
The Positions of the Parties
Crown and defence counsel jointly submit that Mr. Lin should be sentenced to 10 years in jail. They agree that he should receive enhanced credit of 30 days for his pre-sentence custody, as well as some additional credit for his time on release subject to strict conditions. Crown counsel suggests that that time should be 6 months. Defence counsel contends that it should be a year to a year and-a-half.
Analysis
These are extremely serious offences, for which the applicable maximum sentence is life imprisonment. The offence of production of ketamine carries a mandatory minimum sentence of 3 years in jail.
The expansive nature of Mr. Lin’s activity is an aggravating fact. He was an integral part of a large-scale commercial ketamine production and trafficking operation, for a period of about 2 years. He purchased equipment, was the “cook” responsible for production of dozens of kilograms of the drug at one of the addresses involved, delivered ketamine to others in suitcases, and had possession of a large amount of cash. He was not simply a minor player in the enterprise. He was central to its operation.
The nature of the drug involved is an aggravating fact. While ketamine may not have the addictive qualities of some other substances, it has a high incidence of harmful side effects. As well, its use is associated with the perpetration of sexual assaults as a “date rape” drug.
It is an important aggravating fact that the illegal lab where Mr. Lin produced the drugs was set up in a house in a residential area. The house itself was contaminated by the activity.
In mitigation, Mr. Lin is before me as a first offender. Although this is not a case of an early guilty plea, Mr. Lin did plead guilty without setting a trial date. His guilty plea is a sign of remorse and willingness to accept responsibility for his actions. He co-operated with the police, and admitted his involvement in the illegal enterprise. He acknowledged to me in court that he appreciates the wrongfulness of his activity. He faces deportation, and the separation from his family that it will entail.
In all of the circumstances, I accept the joint submission put to me by experienced Crown and defence counsel.
The remaining issue to be decided is to what extent Mr. Lin’s sentence should be reduced to account for his time on bail under house arrest in addition to the credit for pre-sentence custody. It is clear that time spent under stringent bail conditions must be taken into account as a relevant mitigating circumstance. The amount of credit will depend on a number of factors, including the ability of the offender to carry on normal relationships, employment, and activity. The offender should provide the sentencing judge with information as to the impact of the conditions: R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.).
I was given no information about the impact of the strict bail conditions on Mr. Lin. Obviously, there was some restriction on his liberty. For a year, he was bound by a condition that he remain in Ontario, while his family apparently was in Montreal. I note, however, that at the time of his arrest, his illegal activity involved his presence in Ontario. He told the police that, while he lived in Montreal, he “worked” in Ontario. He had a bedroom in the house where the lab was located.
Further, I know little about how he spent his time on house arrest. I have no information that he had any prospect of gainful employment that was impaired, or that his relationships with family members were disrupted, or that he could not participate in religious observance or other activities important to his well-being, or that he could not obtain necessary medical or dental care.
In these circumstances, he is entitled to minimal credit for his time on bail under house arrest. The appropriate credit for the approximately 2 years spent on bail under house arrest is 7 months.
Conclusion
Mr. Lin, please stand.
On count 1, I sentence you to 10 years in jail, less credit of a total of 8 months, composed of 1 month in pre-trial custody and 7 months attributable to the house arrest bail condition, leaving a net sentence to be served of 9 years and 4 months in jail.
On count 2, I sentence you to 9 years and 4 months in jail, to be served concurrently.
On both counts, there is a DNA order, a section 109(2)(a) order for 10 years, and a section 109(2)(b) order for life. All seized money is ordered forfeited.
Thank you. You may sit down. Is there anything that needs to be clarified, Ms. Healey or Ms. Benzakein?
MS. HEALEY: Just if there are any other counts on the indictment related to Mr. Lin, they should be withdrawn.
THE COURT: Yes. And there are some. Mr. Lebovits, anything?
MR. LEBOVITS: The only other thing further is I’m just wondering if he’s going to be incarcerated at – it’s just been suggested to me perhaps maybe the Kingston – he probably is heading towards the Kingston area, but that might be suitable because it’s close to Quebec. At the same time, there might be a Mandarin speaking community around him.
THE COURT: Right.
MR. LEBOVITS: So he won’t be so isolated.
THE COURT: All right. So he wants to be held in a Kingston area institution?
MR. LEBOVITS: Yes. I believe those were his wishes.
THE COURT: I have endorsed that Mr. Lin was sentenced on count 1 to 10 years in jail less 8 months for pre-trial custody and strict bail credit, leaving a net sentence to be served of 9 years and 4 months in jail. On count 2, he is sentenced to 9 years and 4 months in jail to be served concurrently. There is a DNA order on each count, a section 109(2)(a) order for 10 years, and a section 109(2)(b) order for life on each count. A forfeiture order as requested by the Crown is made. I recommend that he serve his sentence in the Kingston area. All other charges are withdrawn at the request of the Crown.
MS. HEALEY: Thank you, Your Honour.
MR. LEBOVITS: Thank you, Your Honour.
MATTER CONCLUDED.