SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

TING LIN and SHUHAO SHI

REASONS FOR SENTENCE

BEFORE THE HONOURABLE MR. JUSTICE J. McCARTHY

on September 26, 2019,

at BARRIE, Ontario

APPEARANCES:

V. Goela Counsel for the Federal Crown

A. Wiebe Agent for T. Lin and S. Shi

THURSDAY, SEPTEMBER 26, 2019

REASONS FOR SENTENCE

McCarthy J.: (Orally)

The Defendants Shi and Lin return before me today for sentencing.

THE CONVICTIONS

Following the jury's findings of guilt on all four counts on the indictment on January the 28th, 2019, the two defendants were each convicted of the following offences under the Controlled Drugs and Substances Act (“CDSA”): Count 1, possession of a Class "A" precursor, Gamma Butyrolactone ("GBL") for the purpose of producing Gamma­hydroxybutyrate ("GHB") between the dates of March 20th and July 13th, 2016; Count 2, possession of Ketamine between June the 8th and June the 12th, 2016; Count 3, possession of Ketamine for the purpose of trafficking between June 28th and June 29th, 2016; and Count 4, possession of Ketamine for the purpose of trafficking on or about June the 22nd, 2016.

THE POSITION OF THE CROWN

The Crown argues for a total sentence of 8.5 years of incarceration for each of the two convicted defendants. That total sentence

should be broken down as follows: 3 years on Count 1; 5.5 years consecutive on Count 2; 5.5 years on Count 3 to run concurrent with Counts 1 and 2; and 6 months on Count 4 to run concurrent with Counts 1, 2 and 3.

The Crown relies on the direction from the Supreme Court of Canada in that maximum sentences should no longer be considered fit for only the worst offenders: See R. v. L.M, 2008 SCC 31, at para. 22. Here, the maximum sentence on Count 1 is appropriate given the quantity of GBL seized (25 litres), the amount of GHB it would yield (208 litres) and both the number of hits (401) that this could produce and the street value of the finished product ($416,000).

The Crown points out that GHB is easily produced out of GBL and used to facilitate sexual assaults on drugged victims. It is commonly referred to as the "date rape drug."

Ketamine is also known as a date rape drug. The expert evidence established that possession of 229 grams of Ketamine and 11 grams of liquid Ketamine is indicative of mid-level trafficking. Here the quantities seized were 1.39 kg, 1.6 kg and 11 grams of liquid Ketamine. These constitute aggravating quantities for the purpose of sentencing. The quantities of substances seized, the deliberate planning, careful storage and intense commercial activity in which the two defendants engaged are evidence of a commercial/for profit operation of some significance.

Denunciation and deterrence are primary principles of sentencing which the court should place in the forefront of its considerations: See R. v. Lloyd, 2016 SCC 13, at paras. 45, 103.

POSITION OF THE DEFENDANTS

Counsel for the respective defendants provided the court with similar, if not joint, submissions. Counsel each suggested global sentences of four to five years per defendant. Individual sentences on all counts should run concurrent since the activity leading to the charges can only be viewed as constituting one enterprise spanning no more than a period of four months. There is no evidence of any profit being made by either defendant; no evidence of any opulent lifestyle; no evidence that would place these two defendants in any category above that of low-level participants in a larger drug operation. Neither individual was found in possession of what might be termed a finished product. There was no production aspect to their monitored activities. No chemical labs were discovered. Both individuals are first time drug offenders; however, Shi has a recent record of breach of recognizance; for his part, Lin has one conviction of endangering life.

On behalf of Mr. Shi, counsel pointed out that he had no record at the time of the subject offences; his breach was limited to a failure to obey a curfew. He is currently employed. Mr. Shi also seeks a reduction of his sentence of three to four months for a Downes credit: he was subject to an 11 p.m. curfew for three years; indeed, his breach serves as proof of just how onerous a condition this curfew was for him.

Mr. Lin is a permanent resident who has been gainfully employed in cabinetry and trucking since 2014. As a permanent resident, however, he is in danger of facing a removal order under the provisions of the Immigration and Refugee Protection Act, SC 2001 c. 27 ("IRPA") in the event he is categorized as "inadmissible" under s. 36(1). Mr. Lin also seeks a Downes credit of six months from his sentence. Apparently, his bail arrangement saw him residing in an isolated community outside of Moncton, New Brunswick, for a period of three years.

ANALYSIS

Principles of Sentencing

The fundamental principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the

Criminal Code. Similar sentencing principles are found in s. 10(1) of the CDSA.

Sentences must have as their goal to encourage respect for the law and the maintenance of a just, peaceful and safe society.

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced for any relevant aggravating or mitigating factors. A sentence should be similar to those sentences imposed on similar offenders for similar offences committed in similar circumstances.

Nevertheless, the case law is clear that sentencing is very much an individualized process and should reflect the circumstances of the offence and the attributes of the defendant.

Courts have consistently emphasized the importance of giving weight to the twin principles of deterrence (both specific and general) and denunciation for cases involving drug trafficking considering the danger posed by drugs and the financial incentives offered by trafficking: See for example, R. v. Cunningham, 1996 CanLII 1311 (ON CA), 1996 O.J. No. 448 (ONCA).

Conclusions to be Drawn from the Evidence and from the Verdict

While there is no evidence in this case that the two defendants manufactured any GHB for consumption on the street, no evidence that they produced or "cooked" any drugs, and no evidence that the defendants derived any profit from their activities, the following conclusions may be drawn from the evidence and from the verdict of the jury:

1. There can be no doubt that the possession of the precursor GBL was for the purpose of producing GHB. The GBL seized would have been the basis upon which 401 hits of GHB would have been made available for consumption on the street. This translates into 401 potential victims; most if not all of them would be entirely random and innocent. While trafficking drugs to hardened "users" is no less criminal an activity, there is something particularly pernicious about playing a role in the production of a substance which is widely known to be a means by which a sexual assault can be visited upon an unsuspecting and helpless individual.

2. Trafficking in drugs is profitable. While we cannot know how profitable it was for these two defendants, we do have expert evidence that quantities of Ketamine far less than those seized from these two defendants would be consistent with mid-level trafficking. Here, the quantities of Ketamine seized were 1.39 kg, 1.6 kg and 11 grams of liquid Ketamine.

3. GHB is easily produced out of GBL; the quantity of GBL seized here could therefore, with minimum effort, produce GHB with a street value of $416,000. It is simply unfathomable that two individuals would go to the time, effort and expense of storing enormous quantities of imported chemicals in a commercial storage locker and run the risks associated with handling these substances, without the expectation of healthy profit. Drug trafficking is a commercial activity; it is conducted for profit. I find that there is a solid basis in the evidence to conclude beyond any doubt that the trafficking activities by these defendants was profitable, or at the very least was clearly intended to be so.

4. While the GBL seized in the storage locker was a precursor, the Ketamine was not. Ketamine is commonly employed as a date rape drug. Thus, all of the socially and morally deplorable consequences associated with GBH being made available as a finished product suitable for exploitation, predatory behaviour and abuse, would also apply to trafficking in Ketamine.

The twin principles of denunciation and deterrence, both general and specific, loom large here. Society must be protected from drug dealers; the handling and proliferation of substances designed to leave potential victims of sexual assault vulnerable to the point of defenceless is intolerable and must be prevented by all available means. Mr. Shi and Mr. Lin must be rendered incapable of participating in this pernicious activity for a good deal of time. A lengthy period of incarceration will undoubtedly ensure this. Actual and potential drug dealers must be deterred from engaging in similar activities.

Mitigating and Aggravating Factors

There are some mitigating factors here; there was no evidence that any minors were victims of these offences, although that is hardly surprising given the distance in time and space that would logically separate these offenders from their ultimate victims. No efforts at rehabilitation were brought to the attention of the courts. I acknowledge that these are the first drug offences for these individuals. They do not come to court as habitual criminals with lengthy records. There is no evidence that any violence, threats or intimidation were employed against individuals or police officers. The defendants' brief interaction with members of the surveillance and investigation team was hardly confrontational.

The total quantity of the seized substances is an aggravating factor. The expert evidence at trial satisfies me that the quantities of Ketamine seized alone would place these two defendants in the mid-level trafficker category at the very least. Although the defendants were not trafficking in the finished product of GHB, the street value of the GBL seized satisfies me that the operation of which they were a part was both lucrative and dangerous.

Consecutive or Concurrent Sentences

I accept that the illegal activities which took place over a period of less than four months must be considered part of one ongoing operation. All these illegal activities were closely connected in time. The methods and means by which the substances were obtained, transported and housed were relatively consistent. There was no element of production in the defendants' activities. The area in which the two defendants operated was relatively confined. The same vehicle was used by the pair for the trafficking operation. To the extent that the defendants interacted with any third person, that interaction was fleeting. The respective activities of the two was almost indistinguishable. While the substances were different, Ketamine a finished product and GBL a precursor, both were undoubtedly possessed and trafficked with a view to street sale of a date rape drug. I am satisfied that concurrent sentences on each of the counts is therefore appropriate and just.

Downes Credits

I am not inclined to award Downes credits for either defendant. In the case of Mr. Shi, absent evidence that the curfew caused him some degree of hardship, deprivation or inconvenience, I can see no justification for awarding any kind of credit. An 11 p.m. curfew does not strike me as a terribly onerous condition of bail in any event. Many people live fulfilling, meaningful and interesting lives without sacrificing anything in the way of personal relationships, employment obligations, socializing or leisure activities by being in their place of residence at such a time on a nightly basis. Mr. Shi's failure to observe a curfew might have more to do with his disrespect for court orders then it does with the severity of bail conditions. I simply do not know and I am not prepared to speculate.

I am not satisfied that a Downes credit is appropriate in the case of Mr. Lin. There is insufficient evidence before me about the nature and quality of his stay in Moncton. It may well have been for his own protection; perhaps he had family with him. There is no indication that he was subject to house arrest, or for that matter, any conditions which served to restrict his freedom of movement. The term "isolated community" could mean any number of things - isolated from what? A major city? A large town? Was public and/or private transportation available to him? Were there interesting diversions available where he resided? Was satellite television, internet, shops, restaurants and cafes? There is insufficient detail of the living arrangements, restrictions and conditions to which Mr. Lin was subject to justify a Downes credit in the present case.

Collateral Consequences

The Supreme Court of Canada has held that a sentencing judge can take collateral, indirect or immigration consequences, into account in fashioning a fit and appropriate sentence: See R. v. Pham, 2013 SCC 15, at para. 14.

Collateral consequences are not aggravating or mitigating factors; rather, they are simply personal circumstances of the offender and they bear on the prospect of rehabilitation. The court warned at paragraph 16 of that decision, that: "These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation”.

While the prospects of a removal order are no doubt unpleasant for Mr. Lin, I heard no evidence that he will be separated from a spouse, his children or any family for that matter. Having considered the consequences of a potential removal order on Mr. Lin, I am not prepared to give it any weight in sentencing. To craft a sentence of less than six months of incarceration or to grant an absolute or conditional discharge in these circumstances would only serve to undermine the expressed intention of Parliament as set out in the relevant provisions of the IRPA. As well, it would be to ignore the twin principles of denunciation and deterrence to grant a discharge order.

As I stated above, only a lengthy term of incarceration can serve to achieve those twin principles in the case at bar. Finally, a sentence of less than six months for Mr. Lin would be entirely dispropo1tionate with the sentences imposed in similar cases; indeed, it would be entirely dispropo1tionate to the sentence which his co-offender Mr. Shi faces for the same offences. It would be a bizarre and shocking outcome in this case if Mr. Lin were to benefit from a measure of leniency that would be denied to his companion simply to defeat the potential impact of a piece of legislation on Mr. Lin's situation.

CASE LAW

Sentencing ranges for Ketamine and GBL/GHB type cases vary greatly depending on several factors, one of the most prominent of which is the volume of drugs being trafficked.

In R. v. Wu, 2014 ONSC 6000, the street value of the seized drugs was between $763,000 (bulk) and $12 million (street value). The accused was on a parole at the time of his arrest. He received a global sentence of eight years in prison.

In R. v. Ling, 2012 ONSC 654 (as affirmed by 2014 ONCA 808) the street value of the street drugs in question was $12.2 million. As well, the defendant was operating out of a drug laboratory in a residential home. He received a sentence of 16 years.

The case of R. v. Villanueva (2007), 46 CR 96th 129, 2007 ONCJ 87 involved the seizure of 1.2 kg of crystal meth, an attempt to supply an undercover police officer with $60,000 worth of crystal meth and a finding by the trial judge that the defendant had been involved in the crystal meth business for some time. He received a prison sentence of 5.5 years.

In R. v. Nguyen 2011 ONSC 6229, the defendant was operating out of a laboratory producing methamphetamine. The value of the seized drugs was $249,000 while the full production potential of the laboratory was found to be in the $3.5 million range. An aggravating factor in that case was that a fire was started in the house where the clandestine drug lab was located. The defendant received a sentence of five years for producing the methamphetamine.

Cases where lighter sentences have been handed out often involve quantities of drugs seized which are far less than those seized in the case at bar. For example, in R. v. Pham, [2016] O.J. No. 6521, the street value of the seized methamphetamine was no more than

$78,300. A serious aggravating factor in that case was the chemical fire at the makeshift laboratory. The defendant received a sentence of four and a half years.

In R. v. Phan [2015] O.J. No. 4863, 2015 ONSC 4681, the defendant with no record was found guilty of possession of 600 grams of ketamine for the purpose of trafficking. No other drugs were seized. There were various mitigating factors including the fact that the defendant was a paraplegic before the offences. He received a conditional sentence of two years less a day and three years of probation.

Disposition

I have arrived at the conclusion that a fit and proper total sentence is six years of incarceration for each of Mr. Shi and Mr. Lin. I arrive at this total according to the following break down:

• 6 years on Count 2

• 2.5 years concurrent on Count 1

• 6 years concurrent on Count 3

• 6 months concurrent on Count 4

The totality principle requires that the global sentence be fit and appropriate. The 8.5 years suggested by the Crown would, in my view, be excessive and would require consecutive sentences, something which for reasons set out above, I am not prepared to order. Since the total quantities of ketamine seized were so significant and constituted a "finished product" for immediate street use, a sentence of six years on both Counts 2 and 3 to be served concurrently would respect and promote the principles of denunciation and deterrence. A 2.5 year sentence concurrent on Count 1 falls short of the allowable maximum sentence; however, given the mitigating factors set out above, this is not a case where the maximum sentence for possession of GBL for the purpose of trafficking is warranted.

A four to five-year term of incarceration as suggested by counsel for Mr. Shi would, in my view, both fail to sufficiently denounce these crimes and would serve to weaken the deterrence effect which is a vital element in sentences for drug trafficking offences.

There being absolutely no suggestion by counsel that either of the two defendants played a larger role in the criminal activities than his respective counterpart, this is not a case where a distinction can be made between the two of them for sentencing purposes.

Mr. Shi and Mr. Lin, would you please rise.

Mr. Shi and Mr. Lin, I sentence you each to a term of incarceration of six years.

I have already granted a forfeiture order in respect of the items seized by police officers. That forfeiture order shall form part of the sentence.

There shall be a prohibition order as defined under section 109 of the Criminal Code in respect of each defendant for a period of ten years following their release from imprisonment.

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. Ting Lin and Shuhao Shi in the Superior Court of Justice held at 75 Mulcaster Street, Barrie, Ontario taken from Recording No. 3811_01_20190926_090925_10_MCCARTJOH.dcr which has been certified by S. Solly in Form 1.

Tracey Beatty, ACT ID #7742765329

October 16, 2019

Transcript Ordered: October 10, 2019

Transcript Completed: October 16, 2019

Ordering Party Notified: October 16, 2019