Court File and Parties

COURT FILE NO.: CR-14-00213 DATE: 20170531 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – YUK YUEN LEE, JING ZHANG HUANG, LUNG WAI CHAN and DAVID ZHENG Defendants

Counsel: Carol Shirtliff-Hinds, for the Crown Darren S. Sederoff for Mr. Lee Martin Kerbel, Q.C., for Mr. Huang

HEARD: January 9, 10, 11, 12, 13, 16, 17, 18, 19, 23, 24, 25, 26, 27, 30, 31, February 1, 3, 2017

REASONS FOR SENTENCE

EDWARDS J.:

Introduction

[1] Mr. Lee and Mr. Huang were convicted by a jury of one count of production of cannabis contrary to s. 7(1) of the Controlled Drugs and Substances Act (“CDSA”), and one count of trafficking in cannabis contrary to s. 5(2) of the CDSA. Subsequent to the jury verdict I conducted a Gardiner hearing to determine the number of marijuana plants at the marijuana grow operation located at 419 Attwell Drive, Toronto, Ontario (“Attwell”). The issue in relation to the number of marijuana plants was relevant to the determination of whether or not the aggravating circumstances set forth in s. 7(2)(b)(v) and (vi) of the CDSA were engaged such that Mr. Lee and Mr. Huang faced a mandatory minimum jail term of three years, had it been determined that the number of marijuana plants involved was more than 500.

[2] At the completion of the Gardiner hearing I released Reasons on April 19, 2017. In those Reasons I determined that the Crown had not proven beyond a reasonable doubt the actual number of plants at Attwell, but did conclude in my Reasons as follows:

While I do not accept that the Crown has established the number of marijuana plants, thereby allowing the Crown to rely on the mandatory minimum, I nonetheless accept the evidence of Detective MacIntosh for the purposes of sentencing that Mr. Lee and Mr. Huang were involved in a substantial marijuana grow operation. That finding, in my view, has been proven beyond a reasonable doubt based on all of the evidence, including the photographic evidence, all of which demonstrates that what was happening at Attwell was a substantial marijuana grow operation. I leave it to counsel to make what submissions they wish to make as to the level of involvement of Mr. Lee and Mr. Huang in that grow operation.

[3] As I indicated to counsel during oral submissions received with respect to the determination of the appropriate sentence, I would be sentencing both Mr. Lee and Mr. Huang on the basis of my finding that they had been involved in a substantial marijuana grow operation. Of particular significance, however, is their level of involvement.

Position of the Crown

[4] The Crown seeks a sentence as against Mr. Lee of four years, together with ancillary orders under s. 109 and a DNA order. The Crown submits that there is no pre-trial custody that should be taken into account in reducing the overall amount of time that Mr. Lee would have to serve. In her submissions, the Crown suggests that Mr. Lee was the “mastermind” with respect to the marijuana grow operation at Attwell. In that regard, it was suggested that he was the individual who paid the various workers who were observed by the police, and notes that in one period of surveillance Mr. Lee is shown in an altercation with Mr. Huang that, it is suggested, relates to the non-payment of Mr. Huang’s wages. Crown counsel suggests that Mr. Chan, a co-accused who was acquitted by the jury, confirmed that he had been hired by Mr. Lee as a worker at Attwell. The Crown points to the fact that there was a hydro bypass at Attwell and that Mr. Lee would have been responsible, as the mastermind, for that hydro bypass.

[5] As against Mr. Huang, Crown counsel seeks a term of imprisonment for two years together with an ancillary order under s. 109 and a DNA order.

[6] Anticipating an argument that would be made on behalf of Mr. Lee and Mr. Huang that this Court should take judicial notice of the imminent changes coming that will govern marijuana, the Crown argues that this Court should not take such changes into account. In that regard, I was referred to a decision of the Saskatchewan Court of Appeal, R. v. Neary, 2017 SKCA 29, where at para. 44 Ottenbreit J.A. stated:

Mr. Neary also argues that his offences are less serious on the basis that the government has proposed in the future to fulfill its election promise to make simple possession of marijuana legal. He asks the Court to place less weight on the principles of denunciation and deterrence mandated by the Act. Such an argument cannot succeed. This Court cannot give less effect to the existing law because of the possibility or even the probability of a future law that has been promised but which is not law at the moment. This Court is bound to apply the law as it stands at the present time and, in any event, the government has not proposed the decriminalization of trafficking in marijuana. [Emphasis added]

Position of the Defence

[7] Mr. Lee was born in 1953. He has a high school education and is a permanent resident of Canada. He is divorced and declared bankruptcy in 2010. He has a criminal record.

[8] On behalf of Mr. Lee, it is suggested that the appropriate sentence is a suspended sentence plus probation. In that regard, Mr. Sederoff argues that in relation to the charges dealt with in the Ontario Court of Justice (“OCJ”) that resulted in a total sentence of five years, Mr. Lee has been incarcerated for 1,642 days and that his parole eligibility date was December 9, 2016. It is suggested that Mr. Lee would have been entitled to early release from the OCJ charges as of December 9, 2016, and therefore Mr. Lee has been in custody in relation to these charges for a period of five months and eight days, or a total of 160 days for which he would be entitled to credit for one and a half days, resulting in a total credit of 240 days in relation to the charges before this Court. It is also noted that Mr. Lee has been held in detention at the local jail in Lindsay where he would not have had access to any of the programs or other benefits that would have been available to him had he been serving his sentence in the penitentiary.

[9] As to Mr. Lee’s role in the marijuana grow operation for which he has been convicted in this Court, Mr. Sederoff notes that there is no evidence that Mr. Lee was involved in the theft of any hydro; that he was not involved in any actual trafficking; that there was no evidence that Mr. Lee was connected to the lease at Attwell; nor did he have any involvement with the landlord at Attwell. It is further noted that the evidence does not establish that Mr. Lee was involved in any monetary transactions involving the rent at Attwell, and that fundamentally the Crown has not proven that Mr. Lee was the mastermind of the marijuana grow operation and that the evidence establishes to the contrary, that his only involvement was that of a “gardener”.

[10] Mr. Huang is 63 years of age. He lives with family members and assists in providing daycare-type supervision of the children. He is employed part-time at an aquarium-type store where he looks after fish. He is divorced and has married someone who is presently living in China, and hopes that his new wife will be sponsored and will join him shortly. He has no prior criminal record. Mr. Huang had a number of jobs, which include working in a local health club as well as a presser for various cleaners. He has three children and immigrated to Canada in 1993.

[11] Mr. Kerbel suggests that the appropriate sentence for Mr. Huang would be a fine in the order of $10,000 to $15,000 plus probation. Mr. Kerbel notes that Mr. Huang has been on bail for four years, and that if a period of probation was attached to this Court’s sentence Mr. Huang would have been under judicial supervision for upwards of seven years. Mr. Huang was in pre-trial custody for six weeks.

[12] Mr. Sederoff suggests that this Court should take into account the change in the legislation that is presently contemplated by the Canadian government, which will fundamentally change the way this Court deals with marijuana related offences. Essentially, Mr. Sederoff suggests that it would be inconsistent to impose the type of penitentiary sentence sought by the Crown when the Canadian government is decriminalizing the simple possession of marijuana [my emphasis].

[13] On behalf of Mr. Huang, Mr. Kerbel suggests that Mr. Huang performed a role at Attwell which was restricted to building tables upon which hydroponic marijuana plants could be grown, for which he was to be paid a salary. Mr. Kerbel notes that the last time Mr. Huang was seen at Attwell was in 2013, and that he was not seen again until he was observed by the police in a fight with Mr. Lee that, it is suggested, related to non-payment of Mr. Huang’s salary. While Mr. Kerbel acknowledges that the police entered the Attwell premises in late 2013 and observed in excess of 3,000 marijuana plants, Mr. Kerbel argues, however, there is no evidence to confirm the number of marijuana plants at Attwell in 2013 when Mr. Huang was last observed by the police.

[14] Mr. Kerbel argues that Mr. Huang performed a role that would be akin to someone aiding and abetting the establishment of a marijuana grow operation, as opposed to someone who was intimately involved in the marijuana grow operation. It is suggested that there is no evidence that Mr. Huang was the mastermind, and that there is no evidence that he was going to reap the type of profits suggested might have been available if the marijuana grow operation had gone to market.

[15] In terms of aggravating factors, Mr. Kerbel rightfully acknowledges that Mr. Huang was involved in a commercial marijuana grow operation which is an appropriate aggravating factor for this Court to take into account. In terms of mitigating factors, Mr. Kerbel points to Mr. Huang’s age and the fact that he has no criminal record, which is accompanied by a good work record. It is noted that he has never been supported by the state on any form of welfare, unemployment insurance or disability. Mr. Kerbel notes that Mr. Huang suffers from a number of health issues which include diabetes, urinary frequency, hypertension and prostrate problems.

[16] Like Mr. Sederoff, Mr. Kerbel notes that this Court should take into account the changes that are coming to the legislation as it relates to possession of marijuana. Mr. Kerbel suggests that the government will now effectively become involved in licensing premises much like the marijuana grow operation which was occurring at Attwell. Fundamentally, it is argued that the moral blameworthiness attached to marijuana is now being removed should the new legislation come into effect.

Aggravating and Mitigating Factors

[17] The most significant aggravating factor presented by the evidence in this case is the fact that the Attwell marijuana grow operation was substantial in nature and was clearly geared to making substantial profits. If Mr. Lee and Mr. Huang were the directing minds behind the marijuana grow operation, the sentence to be imposed to give effect to the principles of denunciation and deterrence would result in a substantial penitentiary sentence. In terms of Mr. Lee, a further significant aggravating factor is his prior criminal record. Mr. Huang, on the other hand, comes before this Court to be sentenced for the first time.

[18] While there has been significant debate in Canada as to whether marijuana has any harmful health effects, a debate that now appears to be destined for significant legislative changes, the fact still remains that the trafficking of drugs – which includes marijuana, occurs in a section of our society often associated with violence. In this case, I take into account as a mitigating factor that neither Mr. Lee nor Mr. Huang appear to have participated in any violent conduct associated with the charges before the Court, other than the one altercation that was observed by the police.

[19] I also take into account as a mitigating factor the fact that the marijuana grow operation did not take place in a residential area, nor is there any evidence of any destruction of private property as is often seen in cases like this where the grow operation occurs in a private residence. While it is suggested by the Crown that Mr. Lee was involved in a hydro bypass, which would be an aggravating factor, I do not accept the suggestion that the evidence at trial establishes Mr. Lee’s involvement in such hydro bypass. In fact to the contrary, Mr. Lee was charged with an offence in relation to a hydro bypass but he was discharged at the preliminary hearing.

Analysis

[20] The principles of sentencing are well known and are set forth in s. 718 of the Criminal Code (the “Code”). One of the principles, which in my view is most applicable to the facts before this Court, is denunciation and deterrence. While there are fundamental changes that likely will be occurring as it relates to the use of and control of the sale of marijuana, the fact remains that the conduct in which Mr. Lee and Mr. Huang were involved at Attwell was unlawful and will remain unlawful once the legislation presently pending before Parliament becomes the law of this land. The activities at Attwell demonstrated an involvement in a sophisticated commercial grow operation that was designed for one purpose and one purpose only, that being to realize a substantial profit.

[21] The Crown has the onus of establishing as an aggravating factor the involvement of Mr. Lee as a mastermind in the grow operation. I am not satisfied that the Crown has come remotely close to satisfying that onus. There is no evidence that Mr. Lee was involved in the lease at Attwell. There is no evidence that Mr. Lee paid the rent at Attwell. There is no evidence that Mr. Lee was involved with respect to the insurance at Attwell. There is no evidence that Mr. Lee had the financial wherewithal to pay for all of the hardware located at the grow operation. The same comments can be made about Mr. Huang. There is no evidence that either Mr. Lee or Mr. Huang had the ability to bring the marijuana to market and thereby realize upon the substantial profits available for the sale of the marijuana.

[22] The evidence does establish that Mr. Lee may have been involved in hiring some of the workers like Mr. Huang and Mr. Chan, but that evidence in my view does not establish Mr. Lee’s role at the higher end of the hierarchy.

[23] In my view another significant principle in imposing a sentence in this case is proportionality, as set forth in s. 718.1 of the Code which requires that the sentence must be proportionate to the “gravity of the offence and the degree of responsibility of the offender” [emphasis added].

[24] While the Attwell marijuana grow operation was a sophisticated commercial grow operation, I am not satisfied that either Mr. Lee or Mr. Huang were the masterminds behind the operation who would ultimately derive the substantial profits associated with such a grow operation. If the evidence had established such an involvement, proportionality and the principles of denunciation and deterrence would have warranted a substantial penitentiary sentence. This is amply demonstrated in a decision of M.A. Code J. in R. v. Pham, 2016 ONSC 5312, where at para. 64 he analyzes the sentencing case law as follows:

The sentencing case law dealing with large sophisticated commercial marijuana grow-ops, like this one, stresses the fact that this particular kind of crime is rationally planned and premeditated. Significant amounts of time, money, preparation, and planning must have gone into the operation that was set up in unit 1006 at 2755 Jane Street. This is the kind of criminal activity that is particularly amenable to, and that requires, emphasis on the sentencing principles of denunciation and deterrence. In addition, the Court of Appeal has repeatedly stressed the "prevalence" of this offence, and the "serious risks" associated with it, as relevant considerations. See: R. v. Tran (2005), 194 O.A.C. 278 (C.A.); R. v. Ha, 2006 CarswellOnt 9770 (S.C.J.), aff'd 2008 ONCA 749; R. v. Nguyen, 2007 ONCA 645; R. v. Nguyen, 2013 ONCA 51.

[25] I was referred by counsel to a number of cases that supported the respective positions asserted by the Crown and the defence. While the principles reflected in those decisions are of assistance to the Court, the fact still remains that suggested ranges from earlier case law are guidelines which are there to assist trial judges in ultimately determining an appropriate, fit and just sentence. This is particularly so given that I am sentencing Mr. Lee and Mr. Huang, who in my view had fundamentally similar roles at the Attwell grow operation but whose circumstances are different, particularly in relation to Mr. Lee’s criminal record and Mr. Huang’s clean record.

[26] When Mr. Lee and Mr. Huang became involved at the Attwell grow operation they must have known that such involvement was criminal in nature. They may not have ultimately derived the substantial profits associated with a marijuana grow operation, but nonetheless their involvement was illegal. Such involvement was not only illegal then, but will continue to be illegal in the future even if the new changes to the marijuana legislation are passed by Parliament. It may one day be legal to grow four marijuana plants at one’s residence, but it will continue to be illegal to participate in an unlicensed marijuana grow operation, like that at Attwell. Mr. Lee and Mr. Huang are to be sentenced in accordance with the legislation as it existed when they were arrested. The changes in the marijuana legislation do not signal to me any fundamental change as it relates to involvement of someone at a commercial marijuana grow operation like that at Attwell. Such conduct will continue to be criminal next year and into the future.

[27] I was referred by the Crown to a decision of our Court of Appeal in R. v. Gobran, 2013 ONCA 407, which involved an accused who had plead guilty to two counts of production of marijuana and three counts of possession for the purposes of trafficking in marijuana. The accused was sentenced to five years concurrent on the production charges and four years concurrent for the trafficking charges. The accused had been involved in three substantial marijuana grow operations which contained respectively 2,079 plants, 1,312 plants and 2,700 plants. The sentencing judge found that the accused was the “operating mind” behind the grow operations and that the street value was equal to something in the range of $1,600,000 to $2,500,000. On appeal, Pepall J.A. stated that it was open to the sentencing judge to conclude that “the Appellant’s involvement in the marijuana grow operations was that of an operating mind”. In upholding the sentence, Pepall J.A. acknowledged that shorter terms of imprisonment have been imposed for similar offences, but that the sentences rendered by the trial judge were not outside the acceptable range given the gravity and seriousness at issue.

[28] I take from the comments of the Court of Appeal in Gobran, that a significant sentencing factor in relation to marijuana grow operations relates to the status of the accused in relation to the hierarchy of individuals that may be associated with a substantial marijuana grow operation. The accused in Gobran was described as the operating mind. In my view, neither Mr. Lee nor Mr. Huang remotely approach the level of the operating mind in relation to the Attwell grow operation. It was open to the Crown to establish evidence that would allow this Court to conclude that Mr. Lee or Mr. Huang were the operating minds. No such evidence is before this Court and I do not propose sentencing Mr. Lee or Mr. Huang as individuals approaching the gravity and seriousness of the crimes committed in Gobran.

[29] The Court of Appeal in another decision relied upon by the Crown, R. v. Nguyen, 2007 ONCA 645, [2007] O.J. No. 3570, dealt with an accused who had been convicted of production of marijuana, possession of marijuana for the purposes of trafficking, simple possession and theft of electricity where the marijuana grow operation involved 1,121 plants and the theft of hydro was in excess of $5,000. The Court of Appeal rejected the submission that a conditional sentence was an appropriate disposition on these facts and noted that the marijuana grow operation was “large scale”. In upholding the sentence of 15 months, the Court of Appeal also took note of the fact that a conditional sentence was not an appropriate disposition given the propensity for marijuana grow operations in the local community and the danger caused by a hydro bypass. The Court of Appeal also took note of the observations of various trial courts to the effect that there had been an increase in large scale marijuana grow operations with accompanying violence and threats of violence. None of the aforementioned evidence is before this Court. The marijuana grow operation was not in a residential area, and to the contrary appears to have been in a commercial area on the outskirts of Toronto. There was also no evidence of any threats of violence other than the one incident involving two of the accused that was observed during the course of police surveillance.

[30] The Crown relies on another decision of the Court of Appeal in R. v. Chen, 2007 ONCA 230, [2007] O.J. No. 1153, where the Appellant had been convicted of production and possession of marijuana for the purposes of trafficking, as well as wilful damage to property. The Court of Appeal did not interfere with the trial judge’s sentence of 18 months imprisonment.

[31] Finally, I was referred to the Court of Appeal decision in R. v. Lee, 2015 ONCA 850, where Mr. Lee, the same Mr. Lee who is presently before this Court, had received a sentence of five years in relation to his conviction on two counts of production of marijuana and two counts of possession of marijuana for the purposes of trafficking. In upholding the sentence of the trial judge, the Court of Appeal stated at para. 2:

…There was ample evidence to show that the appellant was not simply “a delivery guy” as he argues, but a significant participant in the two large and sophisticated marijuana grow operations.

[32] The evidence upon which Mr. Lee was sentenced in the OCJ clearly established that Mr. Lee was something other than a low-level participant in the marijuana grow operations at issue. That evidence, however, is not before me and I cannot sentence Mr. Lee on the basis of the evidence for which he was sentenced in the OCJ, a sentence which was upheld in the Court of Appeal. I am sentencing Mr. Lee and Mr. Huang on the basis of the evidence established at trial. In that regard, as I concluded in my Reasons on the Gardiner hearing I would be sentencing Mr. Lee and Mr. Huang on the basis of their involvement in a substantial marijuana grow operation, subject to the submissions of counsel with respect to their respective levels of involvement in that grow operation. As I have already made clear, I do not accept the Crown’s submissions that it has been established that either one of Mr. Lee or Mr. Huang were the operating mind or directing mind of the Attwell location.

[33] In arriving at an appropriate sentence for Mr. Lee and Mr. Huang, I have come to the conclusion that while neither of these individuals were the operating mind behind the Attwell location. Mr. Lee appears to have played a more active role given that he was involved in at least the hiring of some of the individuals working at the Attwell location. Mr. Huang on the other hand was only observed on one occasion and appears to have performed the role of a carpenter at best. I have also taken into account that Mr. Lee does have a criminal record, while Mr. Huang does not. The criminal record of Mr. Lee that I have taken into account does not include the five year sentence that he is presently serving, which was upheld by the Court of Appeal.

[34] As it relates to Mr. Lee, it is the sentence of this Court that Mr. Lee shall be incarcerated for a period of 15 months. Upon the completion of his sentence Mr. Lee shall be on probation for three years, the terms of which shall include the statutory conditions set forth in s. 732.1(2)(a)-(c) inclusive and s. 732.1(3) (a) (i) and (ii), (b)-(d) inclusive. An ancillary order under s. 109 of the Code and a DNA order shall also be imposed.

[35] As it relates to the question of pre-trial custody, I do not accept the submission made by Mr. Sederoff that Mr. Lee should be entitled to credit for the time period that he has been serving since he would have been eligible for parole as of December 9, 2016. There is no evidence before this Court that Mr. Lee would in fact have received parole as of that date. It is pure speculation to suggest that Mr. Lee would have received parole eligibility on December 9, 2016, and that any time spent in custody since then should be attributed to these charges. I therefore do not credit Mr. Lee with any time for which he has been incarcerated since December 9, 2016. If there is any time that Mr. Lee was incarcerated pending the disposition of the charges presently before this Court, then further submissions can be made on his behalf.

[36] As against Mr. Huang, it is the sentence of this Court that Mr. Huang shall be incarcerated for a period of seven months and one week, which after credit for pre-trial custody of six weeks on a 1.5 basis leaves a net sentence of five months to be served. Upon the completion of his sentence Mr. Huang shall be on probation for three years, subject to the same conditions as Mr. Lee as set forth in para. 35 above. Even though Mr. Huang may only have participated at a low level of the hierarchy of a marijuana grow operation, the fact still remains that he was involved in a substantial marijuana grow operation. This is not an appropriate case for the imposition of a fine or a suspended sentence. Mr. Huang shall also be subject to a s. 109 order and a DNA order.

Justice M.L. Edwards

Released: May 31, 2017

NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral decision read into the record. If any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – YUK YUEN LEE, JING ZHANG HUANG, LUNG WAI CHAN and DAVID ZHENG Defendants REASONS FOR sentence Justice M.L. Edwards

Released: May 31, 2017