DATE: 2019/10/15

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

DAVID LU

Defendant

Kevin Stewart and Ivana Denisov, for the Crown

Christopher Tarach, for the Defendant

HEARD: October 2, 2019

SPIES J.

REASONS FOR SENTENCE

Overview

[1] On August 26, 2019 David Lu pleaded guilty and was convicted of the following offences:

• Unlawful possession of a loaded, prohibited firearm contrary to s. 95(1)(a) of the Criminal Code, (Count 3-first Indictment);

• Possession of Methamphetamine, contrary to s. 4(1) of the Controlled Drugs and Substances Act (“CDSA”), (Count 6 – first Indictment); and

• Failure to comply contrary to s. 145(3) of the Criminal Code, (Count 4 – second Indictment)

[2] After the guilty pleas and my findings of guilt, the Crown withdrew the remaining counts on the two Indictments before the court. Mr. Lu is now before me for sentencing.

The Facts

Circumstances of the Offences

[3] Mr. Lu admitted the following facts in support of his guilty pleas.

[4] As of October 2017, Mr. Lu was at large and wanted on a bench warrant in relation to a Criminal Code/CDSA investigation named “Project Import A”. Mr. Lu was on a surety release for those charges with conditions that included “no weapons”, “no drugs” and “no cellphone” terms.

[5] Mr. Lu was also wanted on a warrant in the first issued in May 2017, for a separate set of charges related to an abduction of two young people in Markham which occurred on March 22, 2017.

[6] On October 20, 2017 at 11:30 a.m., York Region Police tracked a Rogers cellphone associated to Mr. Lu, to the area of Yonge Street and McKee Avenue in Toronto. Police attended the area and located a silver Mercedes sedan in a parking lot behind the “Owl of Minerva” restaurant located at 5324 Yonge Street, Toronto.

[7] Police observed Mr. Lu, his girlfriend Ivy Tong, and their friend Kevin Ku enter the Mercedes after exiting the “Owl of Minerva”. Mr. Ku was in the drivers’ seat, Mr. Lu sat in the front passenger seat, and Ms. Tong sat in the rear. The Mercedes was registered in Mr. Ku’s name.

[8] At approximately 12:55 a.m., York Region officers using an unmarked police vehicle blocked in the Mercedes and arrested Mr. Lu, Ms. Tong and Mr. Ku.

[9] A search incident to arrest of Mr. Lu revealed $2,955 in Canadian currency in his pants pocket, along with two clear plastic bags containing crystal methamphetamine. The larger of the two bags weighed three grams and the smaller weighed one gram.

[10] Mr. Lu was also carrying a brown Louis Vuitton satchel which was removed from his shoulder. Inside police found a loaded, “Taurus International” 40 Calibre handgun; a prohibited firearm. I note that the serial number was not defaced, such that the firearm could not be traced to its registered owner. There is no evidence it was ever used in a crime. Also located in the satchel was $1,075 in Canadian currency and a quantity of change.

[11] At this time, all three Defendants were advised they would be charged with possession of a controlled substance for the purpose of trafficking.

[12] The police searched the trunk of the Mercedes for further evidence of the offences and 25 half pound packages of marijuana was found. Mr. Lu has not made any admissions with respect to this and so I have not considered this fact in determining his sentence.

[13] The Mercedes was seized as offence-related property, along with the suspected drugs which were sent for analysis. The cash located on Mr. Lu was seized as suspected proceeds from the sale of illegal drugs.

[14] The charges against Mr. Ku and Ms. Tong were withdrawn on December 11, 2018.

[15] In addition to the charges that Mr. Lu has pleaded guilty to, he was charged with possession of marijuana for the purpose of trafficking, various other firearms’ offences related to his charge of possession of a loaded firearm, and possession of property obtained by crime.

Circumstances of Mr. Lu

[16] I received some information about Mr. Lu from Mr. Tarach and a Psychological Risk Assessment report prepared by Dr. Giorgio Ilacqua, a Clinical Psychologist. Ms. Denisov did not seek to cross-examine Dr. Ilacqua on this report. Although Dr. Ilacqua reports that Mr. Lu is a generally a poor historian and gave some vague responses to questions he was cooperative and willing to participate throughout his evaluation. Some psychometric testing was done, including risk assessment measures and according to Dr. Ilacqua the results were consistent with Mr. Lu’s self-report and clinical presentation. In addition, Mr. Lu addressed me at length after the sentencing submissions were made.

Personal Background Information

[17] Mr. Lu is 27 years old. He is a Canadian Citizen. He has no siblings. Mr. Lu recalls witnessing physical violence between his parent who separated when he was six or seven. Mr. Lu was then raised by his mother and he reported that they moved often including China, Winnipeg and Ontario. They were poor and he recalls sleeping in cars, shelters and motels. He also told Dr. Ilacqua that he recalled being physically harmed by his mother with various objects and that he was occasionally neglected from an emotional, nutritional and financial standpoint. During his childhood and adolescence, Mr. Lu displayed oppositional and defiant behaviours, which included stealing, using aliases, borrowing money without the intention of paying it back and running away from home when he was 16 or 17. Mr. Lu does not have contact with his father and he last spoke to his mother a few months ago.

[18] Since Mr. Lu has been on his own, he has continued to move frequently. Mr. Lu has not had gainful employment save for a short time when he was 14. He has previously benefited from social welfare.

[19] He is currently in a three-year relationship with Ms. Tong whom he describes as his “true love”. They lived together for one year prior to his arrest and they have a son together who was born just before his arrest. As a result, he has been unable to see and hold this child for the majority of his son’s life given he was prohibited from contact with Ms. Tong until entering his plea before this Court. Ms. Tong is still supportive of Mr. Lu and they will live together once he is released. She currently lives with her parents. Mr. Lu has another son who is five years old, but he does not have contact with the mother or this child.

[20] Mr. Lu only has a Grade eight education. He described himself as a “good, straight A student” but was discouraged by his mother’s criticism. He was never diagnosed with any learning disability, however while he was incarcerated in the Lindsay Jail - the Central East Correctional Centre (“Central East”) he was evaluated by a psychiatrist who diagnosed him with Attention-Deficit Hyperactivity Disorder and prescribed medication that Mr. Lu reports has helped his cognition. In school he exhibited defiant and oppositional behaviours, had difficulty forming stable friendships since he changed schools over 10 times and in an effort to fit in, he made friends with the wrong people. He reports smoking marijuana and consuming alcohol with friends in Grade eight and in Grade nine he was expelled for carrying a knife.

[21] He has been in custody for the last two years but advised that he was not able to take any programs to further his education. When I inquired about this, I was advised that while Mr. Lu was incarcerated in Central East, he was not able to do any educational programs. While at the Toronto South Detention Centre he expressed an interest in doing so but is on a waiting list. Mr. Lu is in custody on other charges as well that are going to trial in Newmarket in November before Fuerst, J. (the “Newmarket charges”). That means that once Mr. Lu serves the sentence I will impose, unless he is acquitted of the Newmarket charges, he will serve another sentence.

[22] When Mr. Lu was 17 or 18 and again in 2014, he reports that he was stabbed and hospitalized for lengthy periods of time. Dr. Ilacqua opines that Mr. Lu presents with:

Depressed and anxious affect as well as some self-report symptoms of paranoia, likely related to substance use. He experiences severe mood swings … His partner believed he suffers from Bi-polar Personality Disorder which has never been substantiated by a mental health practitioner [including Dr. Ilacqua].

[23] Dr. Ilacqua reports that Mr. Lu presents with significant historical substance use. He has been consuming alcohol since the age of three or four, provided by his grandfather and he began drinking regularly at the age of 12 or 13, peaking at age 17 or 18. Then he was introduced to psychoactive drugs and began using cocaine, ketamine and methamphetamine on a daily basis because these drugs allowed him to “function better”. Based on testing done by Dr. Ilacqua, he opines that Mr. Lu’s scores are suggestive of a “high probability of having a substance use disorder. Similarly, his results indicate high probability of risk, with respect to prescription drug abuse.” [Emphasis in original]

[24] Dr. Ilacqua opines that:

At the time of the charges before this Court, Mr. Lu was significantly dependent on ketamine as well as other psychoactive substances. In addition, there appears to be some indication of suppressed and unaddressed childhood trauma that contributed to lack of stability throughout the patient’s life. Although the underlying emotional factors contributing to substance use remains open to exploration, Mr. Lu appears to have used substances as a maladaptive coping strategy. For example, he would use substances multiple times a day “to feel normal”. … Mr. Lu’s description of what appears a deprived childhood could explain his attempt to acquire money.

[25] Mr. Lu also reports an addiction to gambling.

[26] Dr. Ilacqua also reports that Mr. Lu is insightful of the events leading to his current situation as well as the repercussions of the charges and that his attitude is “positive for remorse”.

[27] When Dr. Ilacqua questioned Mr. Lu about his future plans as did I. Mr. Lu gave me a lot of detail about his future plans and I was impressed with the fact that he has clearly put a lot of thought into this and his plans to me seem realistic given his lack of education. He told me that once he is released, he hopes to move to another province to avoid people he used to know and start a restaurant business. In particular he wants to make Chinese dumplings and set up in a place where he can expect to have affluent Chinese students come for take-out. Although he told me that he would consider furthering his education he hoped that he could find a bridge program that would permit him to take college courses.

Criminal Record

[28] Mr. Lu has an extensive criminal record, beginning as a youth, which is primarily for various offences against the administration of justice, although there are convictions for crimes involving violence, namely assault and robbery but they were as a youth. I appreciate that obstruct justice can involve violence but in those cases an assault charge is usually laid as well. Significantly Mr. Lu has no prior firearm or weapons convictions and only one prior drug possession conviction. His record is as follows:

Youth Record

1. 2007-06-20 - Escape lawful custody, fail to comply with recognizance – Probation for one year on each conviction, concurrent

2. 2007-06-27 - Fail to comply with recognizance - Probation for one year

3. 2007-07-25 - Take motor vehicle without consent x two, fail to stop at scene of accident - Probation for one year on each conviction, concurrent

4. 2009-01-16 – Robbery - Time served of nine days and probation for 18 months, prohibition order

5. 2009-06-22 – Fail to comply with disposition, fail to attend court, escape lawful custody - Probation for one year on each conviction, concurrent

6. 2010-03-11 – Assault, fail to attend court, fail to comply with disposition – three months deferred custody and supervision order, probation for one year on each conviction, concurrent

7. 2011-09-30 – Mischief over $5,000, fail to comply with disposition, robbery – Five months deferred custody and supervision order and 13 days pre-sentence custody, and probation for one year on each conviction, concurrent, prohibition order

Adult Record

1. 2010-04-22 – Fail to comply with recognizance x two – Three days and 27 days pre-sentence custody, probation for one year on each conviction, concurrent

2. 2011-09-30 – Obstruction, fail to comply with recognizance, fail to appear - $50 and 36 days pre-sentence custody on each charge

3. 2013-02-12 – Obstruction, fail to comply with probation order – 13 days and 17 days pre-sentence credit on each conviction, concurrent

4. 2014-10-16 – Fail to comply with Recognizance - 15 days and credit for equivalent of 12 days presentence custody and probation for two years

5. 2016-07-07 – Fail or refuse to provide sample - $1,200 and a 12-month prohibition from driving; obstruct peace officer - $1,000; fail to comply with recognizance - $500 and 21 days pre-sentence custody and possession of a schedule one substance - $300

6. 2016-10-31 – Obstruct peace officer – 90 days conditional sentence with credit for equivalent of nine days pre-sentence custody

7. 2019-03-26 – Personation and possession of a vehicle – four and one-half months less three months of pre-sentence custody credited at 1:1.5 as four and one-half months, plus DNA order and a 10-year weapons prohibition order. This is the longest sentence Mr. Lu has received so far.

8. 2019-05-15 – Fail to attend court – 60 days jail

[29] Mr. Lu’s conviction on March 26, 2019 was made by Justice Dwyer of the Ontario Court of Justice. Mr. Tarach argued that the findings by Dwyer, J., although not binding on me, corroborate the self- reporting by Mr. Tarach to Dr. Ilacqua. Justice Dwyer’s oral reasons state that Mr. Lu used his surety’s ID to get a vehicle and that the vehicle was used in a very serious offence but that he was not found guilty of that. Some of the information before Dwyer, J. is not before me; particularly that Mr. Lu was raised in group homes after his parents separated. It does appear that generally, however, Justice Dwyer was made aware of the fact that Mr. Lu came from a broken home. There is no reference to any mental health or drug addiction difficulties.

[30] The criminal record presented to me was that for the conviction imposed by Dwyer, J. Mr. Lu was sentenced to 90 days and both counsel agreed that his pre-sentence custody credit should be reduced by the 90 days he served on this sentence. In fact, Dwyer, J. imposed a four- and one-half month sentence and he gave Mr. Lu credit for three months of pre-sentence custody credited on a 1.5:1 as four and one-half months. Justice Dwyer was clear that in any future calculation of pre-sentence custody Mr. Lu would not be able to use three months of his pre-trial custody and so the position of counsel as to the amount of the deduction is correct.

Opinions of Dr. Ilacqua

[31] Finally, Dr. Ilacqua opines that based on the tests he administered Mr. Lu does not meet the criteria for psychopathy but he did score in the “upper range of moderate risk range (68.4%) for future involvement in the legal system”. [Emphasis in original] Dr. Ilacqua goes on to describe the “static factors” which cannot be changed, that a “loading this level of risk” are related to the number of prior convictions, number of present offences, the fact he was arrested prior to the age of 16, his incarceration, institutional misconduct, charges laid while on probation and his conviction for assault. The dynamic factors are lack of academics, suspensions, lack of recreational structured time, social isolation, frequents address changes and substance use problems. According to Dr. Ilacqua, these factors “could change through clinical support, thus reducing Mr. Lu’s level of risk”. Later in his report he opines that with “appropriate monitoring, structure, and interventions put towards his dynamic factors, Mr. Lu’s risk could likely decrease”. He also opines that “based on the results of this assessment, as a Psychologist [he is] of the opinion that [Mr. Lu] could receive the help he needs in the areas identified in the current assessment without posing any undue risk while in the community”.

[32] Dr. Ilacqua summarizes his opinion as follows:

In my opinion, Mr. Lu’s current legal ordeal can be confidently explained by significant substance dependence and underlying emotional difficulties. It would be my opinion that the patient presents with Substance Use Disorder-Psychoactive Drugs Severe as well as unaddressed features of past oppositional defiant disorder. [Emphasis in original]

In light of the aforementioned, I believe that substance, use, his estimated intellectual functioning and his serious mental health issues (ADHD, paranoia) are the main explanations for his current legal odyssey. It should be noted, that, from a biological and psychological standpoint, clinical effects of substance dependence adversely affect the prefrontal cortex which is responsible for executive decision making. In Mr. Lu’s case, his decisional skills at the time of the event were impaired by the extensive use of drugs.

Because of his estimated low intellectual functioning and because of his severe mental health conditions, the deleterious effects of illicit drugs are amplified and affects other essential areas of functioning, such as the ability to foresee the consequences of his behaviours and the likely consequences these behaviours may have for others.

It is likely that Mr. Lu’s psychosocial and unrecognized intellectual difficulties during his adolescence contributed to oppositional and anti-social behaviours. The long-term substance use that followed these psychosocial difficulties could have possibly induced or aggravated paranoid features which often lead to symptoms of mania, hyper-activity, poor decision making and uncontrolled impulses. These symptoms, coupled with poor intellect and mental health conditions, are the main reason that adversely affected Mr. Lu’s decision make at the time of the charges.

Based on my evaluation of the patient, it is felt that Mr. Lu presents with some psychological characteristics generally associated with the people whose recurrently break the law, such as previous justice system involvement, substance use, antisocial associates and poor vocational and academic record. He presents with remorse and guilt for his actions.

I am of the opinion that the above clinical findings based on the current assessment have a direct bearing on the current justice system involvement; I am also of the opinion that community and professional help are now essential for Mr. Lu’s well-being and for the safety of society at large. [Emphasis added]

[33] In Dr. Ilacqua’s opinion, Mr. Lu’s motivation level for intervention is high and Mr. Lu expressed a willingness to participate in psychological treatment. When Mr. Lu spoke with me, this came through clearly and he strongly asked that I put him on probation so that a probation officer could help him obtain the counselling and other support that he needs. He is prepared to consent to whatever treatment or counselling I deem he should take.

[34] Dr. Ilacqua concludes his report with a number of recommendations to “assist Mr. Lu to remain safely in the community”, upon his release including that he participates in individual psychological treatment. He recommends Mr. Lu should participate in a group setting in an in-patient and follow-up in out-patient rehabilitation and detoxification program that can assist with substance use, he should have random and frequent urine analysis for the monitoring of alcohol and drug use which can be facilitated under prolonged probationary terms and general community supervision, he should make better use of his spare time and would benefit from participation in highly social and prosocial activities with an association, team, or volunteering. He should complete high school, he should undergo a psychiatric assessment to determine the need for psychotropic medications and he should undergo a complete mental health assessment to clarify the issues identified in the current assessment.

Information from Mr. Lu

[35] At the conclusion of the sentencing submissions, Mr. Lu elected to address me, and he spoke to me at length about his regrets and his plans. He impressed me with his sincerity. He candidly told me that earlier sentences imposed on him did not deter him from further criminal behaviour but said that the fact he has now spent about two years in jail has brought home to him that he must change his ways and that he wants to do so, so that he can move on with his life. He explained that he wants a new life with Ms. Tong and their son, and why he wants to move to another province to start that new life and how he plans on supporting his family in a way that does not resort to criminal behaviour. Mr. Lu made it very clear to me that he would agree to any condition that I might impose for counselling and rehabilitation to that he could prove that he can follow court orders now that he is sober.

Enhanced Credit

[36] Mr. Lu filed an affidavit in support of his claim for enhanced pre-sentence credit given conditions while he has been in custody. He deposed that he has been in custody both in the Central East Detention Center in Lyndsay and the Toronto South Detention Center. He had had times of lockdown when he had limited access to time outdoors and fresh air, access areas outside the confines of his cell where he can walk for more than a few strides as opposed to pacing back and forth, showers, a change of clothes, phone contact with his family and lawyer, books and visits from both family and professionals. He has had difficulty dealing with his mental health issues while in custody and during times of lockdown the fellow inmates are increasingly aggravated which results in more fights and threats of violence which makes him feel unsafe. During lockdowns he has had particular difficulty with being able to focus which prevents him from being able to read, increase in headaches, an inability to sit still yet he is confined to a small space for prolonged periods of time and he cannot sleep regularly for days following lockdowns.

[37] Based on a letter from Central East, Mr. Lu was incarcerated there from October 21, 2017 until January 24, 2019 for a period of 461 days. On 18 occasions Mr. Lu’s Unit was locked down for less than six hours and on 84 occasions his Unit was locked down for six hours or more resulting in a total lock down time for this period of 799 hours -none of which is attributed to conduct on the part of Mr. Lu. The maximum time of a lockdown is 8-10 hours; the time inmates would normally be released from their cells to a common dayroom and yard. During a lockdown there is limited access to visits, phones and showers and there is no dayroom or yard access. Mr. Lu was triple bunked on two occasions for a total of two days and he was housed in “Alternative Housing” for 42 days but I have no evidence that this resulted in harsh treatment.

[38] Mr. Lu has been detained at the Toronto South Detention Centre (“TSDC”) since January 24, 2019. During that time until September 26, 2019, there were 68 lockdowns both partial and full, depending on the Unit. Since various different units are listed it seems unlikely that Mr. Lu was impacted by all of these unless they are shown as a full lockdown, in which case all units were locked down. In the case of partial lockdowns, only particular units were affected, and I have no evidence as to what Unit Mr. Lu was in. None of the lockdowns were due to the conduct of Mr. Lu. He was never triple bunked at the TSDC. Again, during lockdowns, instead of 13 hours of time outside the cells, inmates have only 30 minutes to complete phone calls, shower and in some cases yard although those privileges may also be cancelled.

Legal Parameters

[39] The maximum sentence for a first offence of possession of a loaded firearm is 10 years pursuant to s. 95(2) of the Criminal Code. The mandatory minimum of three years is no longer in effect. The maximum sentence for the failure to comply conviction is two years pursuant to s. 145 (3)(a) of the Criminal Code. There is no minimum. Finally, the maximum sentence for the possession of methamphetamine conviction is seven years and again there is no minimum sentence.

Positions of Crown and Defence

[40] Ms. Denisov seeks a global sentence of three and a half years, less pre-sentence custody credit - three years for the firearm offence, three months consecutive for the fail to comply offence, and a further three months consecutive for his offence of possession of crystal methamphetamine, for a total of a 42 months - three and a half years to be served consecutive to any other sentence being served and in particular that any sentence Mr. Lu serves for these convictions should be consecutive to any sentence imposed by Fuerst, J. with respect to the Newmarket charges. It is her position that Mr. Lu should not receive any pre-sentence credit for time served and no enhanced credit.

[41] Ms. Denisov also seeks a mandatory DNA order pursuant to s. 487.051(1) of the Criminal Code on the firearm conviction which is a primary designated offence and a DNA order on the secondary designated offence of failure to comply. Apparently, the policy of the Crown’s office is to ask for a DNA order on all possible convictions, but I see no point in making two orders as Mr. Lu’s DNA will only be collected once.

[42] In addition, Ms. Denisov seeks a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code and forfeiture of the drugs and the $1,075 found on Mr. Lu’s person when he was arrested. There is no issue that these ancillary orders should be made.

[43] Ms. Denisov did seek an order of forfeiture of the Mercedes but since it is registered to Mr. Ku and I was not satisfied that he had been given notice that this relief would be sought before me, Ms. Denisov agreed to pursue that order on another occasion.

[44] Mr. Tarach’s position is that the sentence requested by the Crown is too high and that a global sentence in the range of two to two and a half years is appropriate. He apportioned this as two years for the firearm offence, 30-45 days for the fail to comply and one day for the possession of crystal methamphetamine. Mr. Tarach submitted that if I conclude that given Mr. Lu’s criminal record a longer sentence is required on the firearm offence, he submitted that 28-30 months on the high end should satisfy the court. It is his position that given the time spent in custody and the credit Mr. Lu should receive both on the usual 1:1.5 in addition to an enhanced credit because of adverse conditions in custody, that Mr. Lu should be sentenced to time served.

[45] Neither counsel suggested probation and when I raised this, given that I may have jurisdiction to impose probation should the sentence I impose after any pre-sentence custody credit result in a reformatory sentence, Mr. Tarach readily conceded that this would be appropriate although if Mr. Lu is convicted of the outstanding charges he is facing in Newmarket, he would have to complete that sentence and any sentence I impose before beginning that probation order. As already stated, Mr. Lu made a point of telling me that he would welcome probation.

Sentencing Case Law for Firearm’s Offences

[46] My starting point is the Supreme Court of Canada’s decision in R. v. Nur, [2015] 1 S.C.R. 553, where the majority of the court upheld the decision of the Court of Appeal that the mandatory minimum of three years for a first firearm offence is null and void under s. 52 of the Constitution Act, 1982. At para. 82, Chief Justice McLachlin, for the majority, stated:

At one end of the range, as Doherty, J. A. observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade …. [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51. At this end of the range - indeed for the vast majority of offences - a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. [Emphasis added]

[47] It is clear from this passage of Justice Doherty, speaking for the court in R v. Nur 2013 ONCA 677, [2013] O.J. No. 5120, referred to by Chief Justice McLachlin, that by a “true crime” Doherty, J.A. was referring to a case where an offender has the firearm in his possession as a “tool of his trade” to use in other illegal activities, such as drug trafficking. However, Doherty, J.A. also held at para. 206 that his reasons did not have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what he had described as the “true crime end of the s. 95 spectrum”. He held that:

Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years. [Emphasis added]

[48] This passage suggests that even when the offender is not in possession of a firearm as a “tool of his trade” that if his conduct poses a danger to others that he should continue to receive an exemplary sentence.

[49] Mr. Tarach relies on para 109 of Justice Doherty’s reasons as establishing the appropriate range for a first firearm offence now that the mandatory three year minimum is no longer in place. There Justice Doherty stated:

Had the trial judge been sentencing the appellant without the three-year minimum in place, the crucial question would have been whether a penitentiary term was necessary. I am satisfied that a trial judge, properly balancing all the factors, could have sentenced the appellant to a maximum reformatory term. I am equally satisfied that another trial judge, also properly balancing the various factors, could have imposed a penitentiary sentence for up to three years. As the range of appropriate sentences includes a three-year sentence, a mandatory minimum three-year sentence cannot be described as grossly disproportionate. [Emphasis added]

[50] Based on this passage, Mr. Tarach submits that the appropriate range in sentence begins at the maximum reformatory term. It is his position that Mr. Lu should be sentenced at the lower end of the range. To put this statement by Doherty, J.A. in context I must consider the facts in Nur (trial decision of Code, J. at 2011 ONSC 4874, [2011] O.J. No. 3878). In that case the offender was in possession of a loaded semiautomatic handgun with an oversized ammunition clip. There were 23 bullets in the clip and one in the chamber. The gun could fire all 24 rounds in three and a half seconds. The police found the offender outside a community centre in an area known for gun violence and he was acting as part of a group in a threatening manner that caused the staff to lock down the premises. When the police arrived and approached the offender, he fled. When his attempt to flee appeared to be failing, he tried to dispose of the gun. Police observed him throwing something away in a public area, which was later identified as the handgun. An officer found the loaded handgun under a parked car. Code, J. was not able to make any findings as to when, how or why the offender came into possession of the loaded handgun. In terms of mitigating factors, Code, J. found that the offender, who was 19 at the time of the offence, had good prospects for rehabilitation. He had no criminal record and a strong pro-social family who remained very supportive.

[51] Code, J. considered the sentencing case law that developed in the 10-year period from 1998 to 2008, when the three-year minimum sentence was enacted, and also what would be a fit sentence in the post-2008 era. During the period that a one-year minimum sentence was prescribed for a s. 95 firearms offence, Code, J. concluded (at para. 42) that “… the appropriate sentence for a first offence of possession of a loaded handgun simpliciter, that is, where there were no additional convictions such as for drug trafficking, tended to be between two years less a day and three years’ imprisonment” [emphasis added]. He went on to state (at para. 44) that “the bottom end of the range was generally reserved for youth or first offenders with good rehabilitative prospects who pled guilty and the higher end of the range was generally reserved for offenders with prior records who proceeded to trial.” [Emphasis added]

[52] Code, J. sentenced the offender to one day in custody after 40 months’ credit for 20 month’s pre-sentence custody, although he found that the offender would have received a sentence of two and a half years before the introduction of the three-year minimum. On that basis he concluded that the three-year minimum was not grossly disproportionate as applied to the offender. The Court of Appeal did not interfere with this sentence because the offender was effectively sentenced to time served.

[53] Mr. Tarach submits that the decision of Justice Allen in R. v. Caidenhead [2015] O.J. No. 3125 is the closest to the case of Mr. Lu given the circumstances of the offender and his offending conduct although the facts in Caidenhead were more aggravating as the defendant had a defaced firearm and breached his recognizance on the very same day that the order was made. Mr. Caidenhead was a young offender who was barely an adult when he committed the offences of possession of a loaded firearm, possession of firearm with a defaced serial number, and failure to comply with probation. At para. 28, Allen, J. concluded that an 18-month sentence was appropriate for the offender, despite some serious aggravating factors. Listed at para. 13, the most serious factors included the fact that the offender had walked down a residential street at night with the firearm hidden in his boxer shorts, which posed a danger to himself and others and he was subject to a weapons prohibition order. However, taking into account his young age, his traumatic childhood, and the fact that he had returned to school, had only one entry of theft under on his criminal record and had expressed remorse, Justice Allen determined that an 18-month sentence was appropriate for the firearms possession charges in addition to six months for breach of the prohibition order that was imposed the same day he was arrested for the firearm.

[54] Mr. Tarach also referred to a decision of Justice Croll in R. v. Serrano, 2018 ONSC 6785, [2018] O.J. No. 6128, which he submitted was more serious than the case at bar. In that case the offender was found guilty by a jury of possession of a loaded firearm and related charges. His co-accused had been threatening to use the firearm to gain entry to a night club and passed the firearm to Mr. Serrano who went back into the club. He exited a few minutes later, dropped the gun and picked it up and continued walking. When police approached, he tossed the gun behind him. Croll J. did find however that Mr. Serrano was not aware that his co-accused had the gun in his possession or that he intended to bring it to the club. Mr. Serrano was 36 years old, had a minor and rather dated criminal reason although it did include assault with a weapon and possession of a weapon. He had a college education and two children to support and had close family support and had expressed remorse. Croll J. sentenced the offender to 36 months before pre-sentence credits.

[55] In R. v. McKenzie, 2016 ONSC 5025, [2016] O.J. No. 4273, Justice Campbell of this court sentenced a 33-year-old offender with a prolonged criminal record who possessed a loaded firearm in direct violation of a court order prohibiting possession of a firearm to three and a half years imprisonment less pre-sentence credit. Mr. Tarach referred to this case in support of his position that the sentence sought by the Crown is too high as the facts in McKenzie are far more aggravating but, in that case, the loaded firearm was not found out in public. It was stored in a bedroom dresser, albeit in an apartment the offender shared with his wife and young children, and there was no evidence it had ever been. It is Ms. Denisov’s position that this case is in fact the closest on the facts to the case at bar.

Principles of Sentencing

[56] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence (both specific and general), separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing a sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.

[57] With respect to firearm offence, there are ample statements of this court and our Court of Appeal about danger of handguns and the need to emphasize the sentencing goals of denunciation and deterrence. As Code, J. observed at para. 49 in Nur, supra sentences increase and decrease as societal and judicial knowledge and attitudes about certain offences change: “[R]ecent events, especially in Toronto, have brought home the dangers posed by the possession of loaded handguns and the courts have responded by imposing more severe sentences” at para. 50. That sentiment has only become stronger in light of the increase in gun violence in the city of Toronto.

Analysis

What is a fit sentence for the firearm conviction?

[58] The most serious offence that Mr. Lu was convicted of is possession of a loaded restricted firearm with readily accessible ammunition, contrary to s. 95(1)(a) of the Criminal Code.

[59] In terms of mitigating factors, Ms. Denisov conceded that Mr. Lu's guilty plea mitigates his sentence, but she said that he pleaded in the face of a strong Crown case - he had been caught "red handed" after the police searched him and it was not an early plea as he pleaded guilty almost two years after his arrest. With respect to the report of Dr. Ilacqua, Ms. Denisov argued that this is the first real effort that Mr. Lu has made to deal with his substance abuse issue. She conceded however, that rehabilitation is important and if successful will mitigate risk to society in the future.

[60] Ms. Denisov submitted this was a case of an extremely dangerous combination of drugs and a firearm that is seen as an aggravating factor in sentencing cases, but in my view, that is not accurate in this case. Mr. Lu was convicted of possession only of crystal methamphetamine and on the evidence before me he has a substance abuse disorder. He was not a drug trafficker. That said, I have no evidence before me as to why Mr. Lu was in possession of this firearm. I do not accept the suggestion by Mr. Tarach that Mr. Lu might have felt the need to arm himself because he had been stabbed twice before as there is no evidence to support this. In any event, that of course would not justify his behaviour. The fact is that Mr. Lu made a deliberate decision to have a loaded firearm in his possession when he was out in public and the only reasonable inference to draw is that he intended to use it if he felt it was necessary, putting himself and the public at risk

[61] As submitted by Ms. Denisov the fact that Mr. Lu was wanted on a warrant in the first and a bench warrant with respect to the Newmarket charges is also aggravating. He was on a strict house arrest bail and was prohibited from having any weapons or a cell phone. This was a blatant breach as he was out of the house and in possession of both a cell phone and a firearm. I will be imposing a consecutive sentence for the fail to comply conviction to reflect this.

[62] Although Ms. Denisov conceded that Mr. Lu is still a youthful offender as he is only 27 years old, as she pointed out, he has accumulated a significant criminal record. Most of his convictions are offences against the administration of justice. There are, however, convictions for offences of violence, robbery conviction in 2009 and another in 2011 and an assault conviction in 2010. Ms. Denisov submitted that in the circumstances specific deterrence is important. However, as Mr. Tarach points out, Mr. Lu has never been convicted for weapons or firearm offences before.

[63] Mr. Tarach submitted that in sentencing Mr. Lu I should consider the fact that until I convicted Mr. Lu on these offence on August 26, 2019, he was prohibited from having any contact with Ms. Tong, the mother of his child as she had been a co-accused. He has not been able to hold his two-year-old child or see that child for most of that child’s life. We discussed if and how this fact might be reflected in Mr. Lu’s sentence. I have concluded that it is a factor in my conclusion that Mr. Lu’s prospects for rehabilitation are good.

[64] Mr. Tarach submitted that Mr. Lu’s prolonged abuse of alcohol from an early age affected his frontal cortex where a brain is responsible for executive decision-making powers. That may be but I have no evidence to conclude that this contributed to his criminal behaviour. I do accept however that his undiagnosed ADHD may have contributed to some of Mr. Lu’s convictions for breaching court orders and in particular the failure to attend court convictions.

[65] In my view the following facts are aggravating factors relevant to the sentence I should impose for the firearm conviction in this case:

a) Mr. Lu was moving about in the community with a fully loaded firearm in a satchel that he was carrying over his shoulder.

b) Although Mr. Lu’s criminal record does not include any firearms convictions, his record is lengthy, spanning from being a youth to 2019 and it includes some convictions for crimes of violence although those convictions were only when Mr. Lu was a Youth. As an adult his convictions are primarily for breaches of court orders.

c) As Mr. Lu candidly admitted the lighter sentences that have been imposed on him in the past did not deter him from further criminal behaviour. However, Mr. Lu has served almost two years in custody and I accept his statement to me that this lengthy period of incarceration had impacted him and has deterred him from behaviour in the future that could result in further incarceration.

d) Dr. Ilacqua puts Mr. Lu in the "upper range of moderate risk range (68.4%) for future involvement in the legal system”.

[66] In my view the following mitigating factors are relevant to sentence in this case:

a) Mr. Lu has pleaded guilty to these charges. It may not have been the earliest time he could have but by doing so he did spare this Court a two-week trial and more importantly, his plea makes it clear that he is remorseful and that he accepts responsibility for his actions. He also made this clear during the assessment by Dr. Ilacqua and when he addressed me.

b) Mr. Lu is still a youthful offender and so the prospect of rehabilitation is important. In that regard although it may be that he has not sought help in the past I accept that he is sincere in his desire now to get help to address his substance abuse disorder and his mental health problems. He was very keen on my imposing a term of probation so that a probation officer could assist him in this regard.

c) I accept that Mr. Lu is strongly motivated now to avoid future criminal conduct, not only because he has now been incarcerated for such a long period of time but also because he has a young son whom he has not been able to see for most of his son’s life. He has expressed his intentions to continue moving his life forward in a positive manner after his release and he has sound plans to do so which include moving to another province to distance himself from the negative influences that were in his life.

d) Mr. Lu clearly had a very difficult upbringing and his unaddressed mental health issues and resulting drug addiction problems no doubt contributed to the criminal record he has accumulated. The fact that Mr. Lu was only diagnosed late in life with ADHD is certainly a possible reason for why he failed to abide by court orders. When Mr. Lu took the opportunity to speak to me, he told me that during this period of time he was constantly high and could not differentiate one day from the next. He even went to court some days, thinking he was required to, only to learn that he was not in fact scheduled to appear on that day.

e) Although Mr. Lu has no siblings and does not have any support from his parents, he has a good relationship with Ms. Tong, and they want to share their lives together.

f) In Dr. Ilacqua’s opinion, with "appropriate monitoring, structure, and interventions put towards his dynamic factors, Mr. Lu's risk could likely decrease”. He also opines that "based on the results of this assessment, as a Psychologist [he is] of the opinion that he could receive the help he needs in the areas identified in the current assessment without posing any undue risk while in the community”.

[67] I turn then to what is an appropriate sentence for the firearm conviction. I have considered the cases provided by Mr. Tarach and both his submissions and those of the Crown. As has been often stated, sentencing is a highly individualized process and none of the cases are directly on point. Furthermore, as Doherty, J.A. made clear in Nur in the passage I cited above, judges can reasonably disagree on how an offender should be sentenced within what is an appropriate range for sentence.

[68] Clearly, I must consider as primary factors the principles of general and specific deterrence and denunciation. However, that does not mean that I should not have regard for the potential of rehabilitation. It is also an important factor to be considered particularly in this case as Mr. Lu is still a youthful offender. Mr. Tarach submitted that I should exercise restraint as legislated in ss. 718.2 (d) & (e) of the Criminal Code and although incarceration is necessary the term should be as short as possible and tailored to the individual circumstances of Mr. Lu particularly since he has both a substance abuse disorder and mental health issues.

[69] An important issue I must decide in determining an appropriate global sentence for the firearm possession conviction is whether or not Mr. Lu’s possession of a loaded prohibited firearm in this case ought to be considered as fitting within the “true crime” range of sentencing. In my view the “true crime”, as it relates to appropriate sentencing ranges, requires more than simple possession of a loaded firearm. In this case there is no evidence before me that Mr. Lu had the firearm in his possession as a “tool” of any criminal trade.

[70] The cases referred to by counsel make it clear that the paramount sentencing objectives in a case like this is protection of the public, denunciation and general and specific deterrence. This is Mr. Lu’s first conviction for possession of a firearm and his record does not include any convictions for crimes involving violence save for his youth convictions of robbery and assault. Given that Mr. Lu has now endured by far the lengthiest period of incarceration he has ever faced, I accept his statements to me that he will turn his life around. Given that Mr. Lu’s efforts to rehabilitate himself are recent it is important, in my view, that the sentence I impose not crush his desire to move forward but that I also ensure that he has the supervision of this Court to help ensure he gets on and stays on the right track. I am mindful of the fact that in the past Mr. Lu has breached many court orders. This time I accept it is different. He made it very clear to me that he wants this Court to impose terms of probation.

[71] In light of all of the circumstances of this case that I have referred to, and the case law that I have reviewed, in my view the sentence requested by Ms. Denisov is reasonable save I do not believe that quite enough credit has been given to the fact Mr. Lu pleaded guilty. However, in light of Mr. Lu’s criminal record, in my view Mr. Tarach’s proposed sentence of two years is too low.

[72] Considering the sentencing principals I must apply and all of the aggravating and mitigating factors I have identified that despite Mr. Lu’s criminal record, given his troubled youth, his substance abuse disorder and his mental health issues, and given my conclusion that his prospects for rehabilitation are good, provided this Court provides supervision, a sentence of 32 months is appropriate for the firearm possession conviction.

What is a fit sentence for the failure to comply conviction?

[73] Mr. Tarach submitted that the 60-day sentence Mr. Lu received on his May 15, 2019 conviction was a very serious breach as Mr. Lu absconded on the date of an appearance in an unrelated matter. He argued that in light of that sentence the position of the Crown that a 90-day sentence is too high as on this occasion Mr. Lu’s offence was less serious.

[74] I do not accept Mr. Tarach’s submission as the fact is that Mr. Lu was in serious breach of his terms of release. He was on a house arrest which prohibited him from having a weapon or cell phone in his possession. Furthermore, he has committed this type of offence multiple times. Although Mr. Lu’s ADHD diagnosis could explain the failure to attend court convictions, it does not explain this breach.

[75] The sentence I impose should clearly be consecutive to Mr. Lu’s other sentences, much like it would be if this were a breach of a prohibition order as that is the only way to bring home to Mr. Lu the severity of this conduct.

[76] For these reasons, I find the Crown’s position that there be a 90-day consecutive sentence is reasonable.

What is a fit sentence for the possession of crystal methamphetamine conviction?

[77] I was not provided with any case law on what an appropriate sentence might be for Mr. Lu’s possession of crystal methamphetamine conviction. Simple drug possession convictions are not common in this Court. Mr. Lu was convicted once before for possession of a Schedule I substance in July 2016 and at that time he was fined $300. I do not know what the substance was, but Crystal Meth is a Schedule I drug.

[78] In my view, the fact that I have accepted that Mr. Lu has a substance abuse disorder is the most relevant factor in sentencing him on this offence.

[79] In my view, an appropriate sentence for this conviction is 15 days.

The Global Sentence

[80] For these reasons the global sentence I will impose on Mr. Lu is 35 ½ months. In coming to this conclusion, I have considered both the totality of the sentence and the fact that it is a considerable jump up from the longest sentence ever imposed on Mr. Lu before. This however is a function of the seriousness of these convictions, particularly the conviction for possession of a loaded firearm.

Claim for Credits for Pre-Sentence Custody

The Summers Credit

[81] In R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575, the Supreme Court of Canada found that because every day served in pre-trial custody does not count towards parole eligibility, pre-trial custody has been determined to be more onerous than time served post sentence; an offender should receive an enhanced credit at 1.5:1 for every day served before he is sentenced.

[82] Ms. Denisov's position is that Mr. Lu is not entitled to the Summers credit. She provided me with a timeline setting out the events since Mr. Lu was arrested on these charges on October 21, 2017. It is her position that he fired four lawyers and was going to plead guilty two times earlier and then “reneged”. He then ultimately asked for the charges to be transferred from Newmarket to Toronto which caused further delay. She submitted that Mr. Lu should not benefit from receiving an enhanced credit, given these were all decisions he made. However, when I inquired, Ms. Denisov advised me that she was not prepared to argue that Mr. Lu's conduct in this regard was deliberate in order to take advantage of enhanced credit. To explain why Mr. Lu did not plead earlier to these offences, Mr. Tarach advised me that it was only on the last occasion that the Crown agreed to cap their sentencing submissions to three and a half years.

[83] In my view, unless I could be satisfied that Mr. Lu’s conduct was in order to take advantage of the enhanced credit for time served, his delay in coming to the decision to plead guilty, while possibly relevant to sentence, does not deprive him of this credit.

[84] Ms. Denisov also argued that Mr. Lu was not someone who would be a candidate for early release. Although this could be a valid argument, there is no evidence before me that he has committed any misconduct while in custody. The fact that he has a prior conviction as a youth for escaping lawful custody would not be relevant in my view.

[85] I therefore conclude that Mr. Lu is entitled to a credit for pre-sentence custody at the rate of 1.5:1. He has been incarcerated for 713 days from October 20, 2017 to October 2, 2019; the date of the sentencing hearing plus an additional 13 days to today’s date for a total of 726 days. From that amount, the time served on other sentences (90 days on March 26, 2019 for the personation/possession and 60 days on May 15, 2019 for the fail to attend), which is a total of five months; 150 days, on his last two convictions must be deducted which equals 576 days. Applying the ratio of 1.5:1, this results in a pre-sentence credit of 864 days.

Conditions of Custody

[86] Mr. Tarach requested that this Court grant Mr. Lu an additional 90 days credit in addition to the Summers credit because of harsh conditions while he was serving his pre-sentence custody. Mr. Lu has provided evidence as to how the lockdowns adversely impacted him, which Ms. Denisov did not challenge by way of cross-examination. She did take the position that the number of lockdowns was not sufficient to warrant an enhanced credit. I disagree. In my view Mr. Lu is entitled to an enhanced credit and the issue is how should it be calculated.

[87] The jurisdiction to award an enhanced credit in these circumstances was set out by the Court of Appeal in R v. Duncan, 2016 ONCA 754, where the court the held that an offender may be given credit for time spent in custody in excess of 1.5 days per day served, given the conditions under which the offender was held in custody. The court held, at para. 6, that:

… particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. [Emphasis added]

[88] In Duncan, there were a number of lockdowns due to staffing issues, but there was no evidence regarding the adverse effect these lockdowns had on the particular offender. In fact, Mr. Duncan took positive steps towards his rehabilitation while he was in pre-sentence custody. As such, he was not granted any enhanced credit beyond 1.5:1 because of the absence of evidence regarding how this situation impacted him.

[89] Mr. Tarach provided the decision of R. v. Campbell, 2017 ONSC 26, [2017] O.J. No. 633, a decision of McWatt J. of this Court, because in that case the number of lockdown days was 183, comparable to the number in the case of Mr. Lu and Justice McWatt granted an enhanced credit of three months or 90 days which I note brings the credit for those days up from 1.5:1 to 2:1.

[90] I provided counsel with my decision in R. v. Kabanga-Muanza, 2018 ONSC 1161, where I considered several cases following the Duncan decision. In that decision at para. 112, I stated that I would not meticulously scrutinize the lockdown records to determine the length of the lockdowns in terms of hours, but I did reduce the number by 33% to reflect the fact that all of the lockdowns were not for a full day.

[91] In this case however, as already stated, the information from Central East is that of the 102 days of lockdowns, on 18 occasions Mr. Lu’s Unit was locked down for less than six hours. The information also includes the fact that the total lockdown hours was 799 hours and that the maximum time of a lockdown is 8-10 hours. This reflects about 80-100 days. In my view, given this information, I should not use the total number of days of 102 to calculate the enhanced credit. As I did in Kabanga-Muanza there should be a reduction. I will use 90 days as well as the two days when Mr. Lu was triple booked for a total of 92 days for his time spent at Central East.

[92] In addition, there is the time that Mr. Lu was subjected to 68 lockdowns while at the TSDC. I am prepared to credit Mr. Lu for these days as well. I accept Mr. Lu’s advice today that since the sentencing hearing there have been 10 additional lock down days bringing the total to 78.

[93] This brings the total number of days eligible for an enhanced credit to 170 days (92 plus 78 days); around 20% of his days in custody. I note that this would have included the five months of time that Mr. Lu served on the other two sentences but there is no evidence before me that he received an enhanced credit for those sentences and Ms. Denisov did not submit that this should be considered.

[94] Mr. Tarach submits that because of Mr. Lu’s mental health issues that his evidence that these lockdowns were particularly hard for him should be accepted. I agree and accept that Mr. Lu would have been particularly impacted by the days in lockdown.

[95] I referred to several cases, which I will not repeat here, including my earlier decision in R. v. Burke, 2018 ONSC 5183 where I granted the offender a credit at the rate of 2:1 for the days spent in lockdown, which I found was justified even though Mr. Burke had been able to accomplish a lot while in custody despite adverse conditions. I did state however, at para. 68, that I would not say that every case justifies a 2:1 credit.

[96] In my view this is a case that justified a 2:1 credit for the 170 days I have found justify an enhanced credit which results in an additional credit of .5 x 170 which equals an enhanced credit of 85 days.

Further Credit requested based on [R v. Wilson, 2008 ONCA 510](https://www.canlii.org/en/on/onca/doc/2008/2008onca510/2008onca510.html), [2008] O.J. No. 2512 (Ont. C.A.)

[97] Finally, Mr. Tarach requested a further reduction in Mr. Lu’s sentence of 15 to 30 days based on the fact he lost pre-trial credit while serving consecutive sentences for other offences that would otherwise have attracted the Summers credit. In this regard he relied on Wilson, supra at para. 46 where the court stated that:

a sentencing judge is entitled to take into account time spent serving another sentence as part of the complete picture for understanding a particular offender. …it may be that an offender could not serve a prior sentence in a facility that had appropriate treatment, training or other rehabilitation opportunities because he was awaiting trial on another charge. In effect, by reason of the fact that he was awaiting trial, the circumstances under which he served the sentence were harsher than they might ordinarily be. I would think these are circumstances the sentencing judge could take into account, if made aware of them, because they relate directly to the offence the offender is being sentenced.

[98] The two prior sentences that Mr. Lu served while in custody on the charges before me and the charges from New Market were 60 days and 90 days; both reformatory sentences. Mr. Tarach did not submit that Mr. Lu would have been detained in a different facility, but he did submit that Mr. Lu would have had better access to programs had he just been serving these sentences. I have no evidence of that however. I accept that if I did that this would be a factor that I could consider.

[99] If I understand Mr. Tarach’s principal argument, based on Wilson, he submits that by deducting 150 days from the time served no credit is being given to Mr. Lu for the fact that had he served the other sentences on their own he would have been granted parole before serving the full sentence. Ms. Denisov submitted that Mr. Lu should not be allowed to “double dip”. I agree. Mr. Lu is getting credit for all of the time spent in custody on these other convictions and to award him a further credit would be to count that time twice. I therefore am not prepared to give Mr. Lu an additional credit on this basis.

Total Pre-Sentence Custody Credit

[100] For these reasons the total pre-sentence credit that Mr. Lu is entitled to is 864 days plus 85 days for a total credit of 949 days or almost two years and seven and a half months or 31 1/2 months. As a result, I also have jurisdiction to impose a term of probation which for reasons already stated, in my view, is necessary to assist Mr. Lu in his efforts at rehabilitation. A term of two years is necessary to give those efforts sufficient time to be completed. This order can be transferred to another province should Mr. Lu decide to move as he has stated he wishes to do.

Final Disposition

[101] Mr. Lu please stand.

[102] With respect to your conviction for possession of a loaded restricted firearm with readily accessible ammunition, contrary to s. 95(1)(a) of the Criminal Code; Count 3 in the first Indictment I sentence you to 32 months in custody, to run consecutively to any other sentence that you are or will serve.

[103] With respect to your conviction for failure to comply, contrary to s. 145(3) of the Criminal Code, Count 4 in the second Indictment, I sentence you to 90 days in custody to run consecutively to your sentence on Count 3 and any other sentence that you are or will serve.

[104] With respect to your conviction for possession of Methamphetamine, contrary to s. 4(1) of the CDSA, Count 6 in the first Indictment, I sentence you to 15 days in custody to run consecutively to your sentence on Count 3 and any other sentence that you are or will serve.

[105] As a result, your total sentence is 35 ½ months. After giving you credit for pre-sentence custody of 31 1/2 months, to be applied to your global sentence, you have four months left to be served. The Indictment will reflect that the credit for pre-sentence custody includes all of the time you have been in custody on the charges before this Court to the date of this sentencing.

[106] There will also be a mandatory weapons prohibition order pursuant to s. 109(3) of the Criminal Code for life and an order pursuant to s. 487.051(1)(a) authorizing the taking of a DNA sample. The firearm, ammunition, cash and the crystal meth will be forfeited to the Crown.

[107] Once you are released from custody after serving this and any other sentence, you will be subject to a period of probation for two years. In addition to the compulsory conditions of this probation order, provided for by section 732.1(2) of the Criminal Code, the additional conditions of the order pursuant to s. 732.1(3) of the Code are as follows:

i. Report within 2 working days of your release, in person, to a probation officer and thereafter when required by the probation officer;

ii. Reside at an address approved of by the probation officer;

iii. Do not change your address without the prior approval of the probation officer;

iv. Attend and actively participate in treatment, and/or counseling and/or rehabilitation program(s) for drug addiction and/or other issues as recommended by your probation officer and sign releases to monitor compliance as needed;

v. Make reasonable efforts to further your education or vocational training and/or find and maintain suitable employment either as an employee or business owner and provide progress reports to your probation officer as directed;

vi. Perform 100 hours of community service work. The work is to commence within 30 days of the date of commencement of your release from custody and shall be completed at a rate of not less than six hours per month in consecutive months and shall be completed to the satisfaction of your probation officer within eighteen months of this Order. You shall provide your probation officer with proof of attendance and completion of community service assignments;

vii. Do not possess or consume any of the substances listed in the schedules to the Controlled Drugs and Substances Act, and abstain from all other non-medically prescribed drugs or narcotics;

viii. Abstain from owning, possessing or carrying any weapon as defined in the Criminal Code;

ix. Do not apply for nor possess a firearms acquisition certificate or any other form of gun license;

x. Do not have any contact with, or be in the company of, or associate with Kevin Ku;

xi. Do not have any contact with, or be in the company of, or associate with anyone known by you to have a criminal record or who is the subject of criminal charges except for members of your family or persons you come into contact with because of your employment, school or community service, except in the company of your lawyer.

[108] Mr. Lu, a copy of the Probation Order will be given to you by the court officials who will ensure that the relevant provisions of the Criminal Code that apply to a probation order are explained to you regarding the probation order. Please pay very careful attention to all of these conditions. I must tell you that breach of any of your conditions of probation will be taken very seriously by this Court. You must appreciate that incarceration will likely result if any of the conditions of your probation are breached. I hope that the terms that I have imposed will bring home to you the seriousness of your conduct and assist you in becoming a productive and law-abiding member of our community once you are released from custody.

SPIES J.

Released: October 15, 2019

Edited Reasons Released: October 22, 2019

DATE: 2019/10/15

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Crown

• and -

DAVID LU

Defendant

REASONS FOR SENTENCE

SPIES J.

Released: October 15, 2019