SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
QI AN WENG
REASONS FOR SENTENCE
BEFORE THE HONOURABLE REGIONAL SENIOR JUSTICE M.K. FUERST
on April 12, 2018,
at NEWMARKET, Ontario
APPEARANCES:
M. Capotosto Counsel for the Federal Crown
P. Sun Counsel for Qi An Weng
THURSDAY, APRIL 12, 2018
REASONS FOR SENTENCE
Fuerst J.: (Orally)
A residential community in Markham was the site of an explosion and fire that destroyed one house and extensively damaged two others. The cause was the illicit production of cannabis resin in the basement of one of the homes.
Qi An Weng pleaded guilty to production of cannabis resin and arson by negligence. His lawyer and the federal prosecutor agree that I must impose a global penitentiary sentence for these offences.
The Circumstances of the Offences
In March 2016, Mr. Weng, his wife, and their three children rented a room in a detached house in a Markham subdivision. The house was owned by another party.
On the afternoon of March 15th, 2016, the house exploded, and was then consumed by flames. The house was completely demolished.
The fire spread to two other homes, one on each side of the subject property. Both of those
homes sustained extensive damage. They were subsequently deemed unsafe by the City of Markham.
Police arrived minutes after the initial explosion. They found Mr. Weng lying on the ground across the street from the house, behind a sports utility vehicle. He was screaming in agony and had burn injuries all over his body. He was taken to hospital by ambulance. He suffered serious burns all over his body.
Mr. Weng’s wife and the three children also were taken to hospital. One of the children suffered a bruise to the top of her head.
All five members of the family were inside the house at the time of the explosion.
The police found, in Mr. Weng’s wallet, a license for Personal Use-Production License of Dried Marijuana for Medical Purposes. The license was in the name of another person.
On subsequent investigation, the police discovered in the rubble of the house 173 cans of butane without butane caps, glass vessels, approximately 4.5 kilograms of marijuana, and various apparatus.
It was revealed that a butane extraction laboratory had been set up in the basement of the house to achieve the extraction of cannabis resin from cannabis marijuana. This process involved packing marijuana in glass extraction vessels and injecting butane into holes on the vessels. Then the butane was drained out of the vessels, deposited into containers, and evaporated to leave cannabis resin as a finished product. The presence of butane gas from this process was the cause of the explosion and subsequent fire.
Mr. Weng was arrested on March 19th, 2016. He told the police words to the effect, “You’ve gotta take the responsibility when you did something”.
Although the marijuana and the butane extraction equipment belonged to someone else, Mr. Weng admitted in court, through his lawyer, that he made use of it personally to produce cannabis resin using butane.
Mr. Weng specifically admitted on his guilty plea that the intentional introduction of butane gas into the basement for the butane extraction process represented a marked departure from the standard of care that a reasonably prudent person would use to prevent explosions or fire.
The Circumstances of Mr. Weng
Mr. Weng is 33 years old. He was born in China, where his parents still live. He came to Canada in 2009, as a refugee claimant. That claim was later denied. I am told that he is on an immigration bail and is subject to a removal order.
Mr. Weng is in a common-law relationship. He and his spouse began living together in 2011. They have three children who are approximately six, four, and two years old. All of the children were born in Canada.
Mr. Weng apparently completed Grade 9 in China, at which point he was 17 years old. After leaving school he worked at various jobs including washing cars, installing automotive parts, and carpentry.
In Canada, Mr. Weng initially worked as a cook, and then in roofing, farming, and in restaurants. He has not worked since his arrest. His wife works as a waitress and supports the family financially.
Mr. Weng was found guilty of fraud under $5,000 in 2017. He received a conditional discharge and 12 months’ probation.
The Positions of the Parties
Mr. Capotosto, on behalf of the federal Crown, and Mr. Sun, on behalf of Mr. Weng, jointly submit that a global sentence of three years in jail is appropriate, with one year being imposed for the offence of production of cannabis resin and two years, consecutive, for the offence of arson by negligence.
Mr. Capotosto specified that the federal Crown was not relying on the mandatory minimum for the production offence.
Counsel agree that against the three-year sentence, Mr. Weng should be credited with 11 months for pre-sentencing custody as well as strict bail conditions, comprised of five and one-half months for each, leaving a sentence to be served of two years and one month in jail. They also agree that there should be a DNA order and a s. 109 weapons prohibition order.
The Principles of Sentencing
The objectives of sentencing that I am required to consider are set out in Section 718 of the Criminal Code.
They are: the denunciation of unlawful conduct and the harm done to victims or the community, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community.
Additionally, s. 10(1) of the Controlled Drugs and Substances Act states that the fundamental purpose of any sentence for a designated substance offence is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society while encouraging rehabilitation, treatment, and acknowledgement of the harm done to victims and the community.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
Analysis
The aggravating factors of these offences include:
Mr. Weng participated in very dangerous activity in a house in a residential neighbourhood. The activity put the well-being of his wife and children, as well as neighbours, at very real risk. The activity in the basement of the house resulted in actual injury, albeit minor, to his daughter. It was fortuitous that no other innocent parties were injured or killed.
As a result of the activity in which he participated, the house in which he and his family lived was demolished, and two neighbouring homes were effectively destroyed. The economic loss, whether to the property owners, their insurers, or both, was obviously significant. It was simply fortuitous that no other properties in the neighbourhood were impacted.
The dangerous activity was not spontaneous. However makeshift the operation may have been, it required forethought on Mr. Weng’s part to participate in the extraction activity.
It is admitted that Mr. Weng engaged in the activity with the aim of monetary gain. He acknowledged, through his lawyer, that he was paid money for his participation.
The mitigating factors include the following:
Mr. Weng pleaded guilty, which is an expression of remorse and willingness to take responsibility for his offences. He did so before a trial date was set.
He expressed remorse to me in court.
He is before me as a first offender, given that the finding of guilt for fraud under $5,000 occurred after he committed these offences.
In light of the makeshift nature of the butane extraction operation, it can be inferred that it was not particularly lucrative.
Mr. Weng himself suffered serious burn injury.
I recognize that Mr. Weng faces deportation from Canada and separation from his spouse and children, although it is not a mitigating factor given that it is the result of the denial of his refugee claim.
Denunciation and deterrence, both general and specific, are the governing principles of sentencing in this case, particularly given the commercial aspect of Mr. Weng’s activity and the very serious risk to the well-being of members of the public that this kind of clandestine drug laboratory poses. I do not overlook rehabilitation, but it plays a lesser role, given the nature of the offences.
In R. v. Anthony-Cook, 2016 SCC 43, at paragraph 42, the Supreme Court of Canada held that trial judges should reject joint submissions as to sentence only where the proposed sentence “would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.” I have no such concern about the joint submission put to me by Crown and defence counsel in this case.
Mr. Weng, please stand.
On Count 1, I sentence you to one year in jail, less credit of 11 months for pre-sentence custody and strict conditions of bail, leaving a sentence to be served of one month in jail.
On Count 7, I sentence you to two years in jail, consecutive.
The global sentence to be served is two years and one month in jail.
There is a s. 109(2)(a) order for 10 years, and a s. 109(2)(b) order for life on Count 1. There is a DNA order on both counts.
I impose a victim surcharge of $200 on each count with two years to pay.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Tracey Beatty, certify* that this document is a true and accurate transcript of the recording of R. v. Qi An Weng in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on April 12, 2108 taken from Recording No. 4911_403_20180412
_02631_30_FUERSTM.dcr which has been certified in Form 1.
Tracey Beatty, ACT ID#7742785329
May 30, 2018
Transcript Ordered: April 18, 2018
Transcript Completed: May 30, 2018
Ordering Party Notified: May 30, 2018
[*This certification does not apply to these Reasons for Sentence which were judicially edited)