COURT FILE NO.: CR-22-91100925
DATE: 20230602
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
BIN CHEN
Defendant
Jacob Wilson, for the Crown
Bin Chen, Self-Represented Brian Irvine, Amicus curiae
HEARD: April 6, 2023
REASONS FOR SENTENCE
MCKELVEY J.:
Introduction
[1] The defendant, Bin Chen, has been found guilty of the following offences:
THAT, on or about the 6th day of May in the year 2020 at the City of Vaughan in the Regional Municipality of York did, commit an aggravated assault causing bodily harm to Cai-Yun Wu, contrary to Section 267 (b) of the Criminal Code.
AND FURTHER THAT, on or about the 6th day of May in the year 2020 at the City of Vaughan in the Regional Municipality of York did use a weapon, namely a handgun, to rob Calvin Leung of a cell phone, contrary to Section 343, Subsection (d) of the Criminal Code.
AND FURTHER THAT, on or about the 6th day of May in the year 2020 at the City of Vaughan in the Regional Municipality of York did, without lawful authority confine Chris Leung Calvin Leung, Conrad Leung and Sara Wu, contrary to Section 279, Subsection (2) of the Criminal Code.
AND FURTHER THAT, on or about the 6th day of May in the year 2020 at the City of Vaughan in the Regional Municipality of York did break and enter a dwelling-house situated at 132 Rumsey Road, and commit therein the indictable offence of robbery contrary to Section 348, subsection (1), clause (b) of the Criminal Code.
[2] The defendant now comes before this Court for sentencing on these offences.
Background Facts
[3] In the early morning hours of May 6, 2020, a group of individuals broke into a home on Rumsey Road in Vaughan. Inside the home were Conrad Leung, who was 67 years old and works in the real estate business. He initially heard a noise in the middle of the night. He then heard a scream and was awoken by someone rubbing his face. He initially thought it was a prank, but then realized something terrible was happening.
[4] Sara Wu is the wife of Conrad Leung. She testified that she was asleep when someone broke into the house. She was awoken when someone was pressing a hard object which felt like the hand grip of a gun against her head. One of the intruders was pressing down on her head and one was putting duct tape over her mouth. She then had her hands tied behind her back and the intruders hit her on the head and used a bag to cover her head.
[5] Calvin Leung is 21 years old and is the son of Conrad Leung and Sara Wu. At around 4:30 a.m. he was in his bed watching videos. He heard shuffling noises. Two men rushed at him and put his head on the bed. They put tape around his head covering his eyes and tied his hands.
[6] Christopher Leung is the older brother of Calvin Leung. He testified that in the middle of the night he heard his mother screaming and heard banging in the hallway. He then went out into the hallway. He was subsequently tackled on his side and a blanket was put over his face and they kicked him. They asked for money. A person told him that they intended to kill him.
Applicable Legal Principles
[7] The principles of sentencing are set out in s. 718 of the Criminal Code which provides as follows:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[8] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[9] Section 718.2 (b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. A sentence is also required to be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
[10] Finally, under s. 348.1, if a person is convicted of an offence under s. 348 of the Criminal Code, the court, in imposing a sentence on the person should consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence:
(a) knew that or was reckless as to whether the dwelling-house was occupied; and
(b) used violence or threats of violence to a person or property.
Position of the Parties
[11] The Crown takes the position that an appropriate sentence for Mr. Chen is a custodial sentence of 7 to 8 years less pre-trial custody.
[12] The defence position is that a sentence of up to 6 months in custody would be appropriate, or alternatively, a sentence of up to 2 years served in the community.
Ancillary Orders
[13] The Crown seeks a number of ancillary orders against Mr. Chen as follows:
The Crown seeks an order under s. 487.051 for the defendant to provide a sample for DNA analysis. This is based on his conviction of an offence which has been designated as a primary designated offence under s. 487.04 of the Criminal Code.
In addition, the Crown seeks an order under s. 109 of the Criminal Code prohibiting the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance. With respect to any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance, the period of prohibition is for a period of 10 years following the defendant’s release from imprisonment. With respect to possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition, the prohibition is for life.
The Crown further seeks an order under s. 743.21 prohibiting the defendant from communicating, directly or indirectly with Kwabena Asare, Elijah Bishop, Zhen Zhen, Conrad Leung, Sara Wu, Calvin Leung and Christopher Leung during the custodial period of his sentence.
[14] I find that these ancillary orders are appropriate in this case and they will, therefore, form part of Mr. Chen’s sentence.
Circumstances of the Offender
[15] A pre-sentence report was obtained with respect to Mr. Chen. This report indicates that the defendant is currently 55 years old and emigrated to Canada from China in 2002. He has two children. One is a daughter who is employed as a teacher and his son is a university student. The defendant advised that his daughter is aware of the matter before the court which has had a negative impact on their relationship. However, the son is not aware and the subject became emotional when sharing his fear of damaging his relationship with his son, if his son were to be made aware of this criminal matter.
[16] The defendant reported that his highest level of education was from China at a grade 5 level. After arriving in Canada he enrolled in a learn the language program, but found it to be challenging and could only learn the numbers. In order to avoid the language barrier, the defendant has resided within predominantly Chinese speaking communities. The defendant has worked in construction for over 10 years and no significant periods of unemployment were reported by him.
[17] The defendant expressed concern about being deported from Canada because of the conviction for these offences. The pre-sentence report indicates that Ministry computer records indicate that the defendant is currently a subject of interest to the Canadian Border Services Agency. I note, however, that the possibility of deportation must not be allowed to overwhelm other sentencing issues. As noted by the Supreme Court of Canada in R. v. Pham, 2013 SCC 15, the collateral consequences related to immigration may be relevant in tailoring a sentence but their significance has to be determined with regard to the facts of a particular case. As noted by the Supreme Court, the potential for deportation, “must not be allowed to dominate the exercise or skew the process either in favour of or against deportation.” I accept, however, that the risk of deportation can reasonably be considered as a mitigating factor in considering an appropriate sentence. This is based on the reality that Mr. Chen may face collateral consequences as a result of his incarceration.
[18] In her submissions, the Crown advised that Mr. Chen had previously been convicted in March of 2018 of possession of break-in instruments, contrary to s. 351(1) of the Criminal Code. He was levied a $500 fine. This conviction is referred to in the pre-sentence report. In addition, there is a further criminal conviction on February 6, 2020 of obstructing a peace officer for which he was given a conditional discharge and 12 months probation. The current offences which Mr. Chen has been convicted of occurred during his period of probation.
[19] Reverend David Ko of the Livingstone Assembly in Scarborough attended at the sentencing hearing and advised that the defendant became a member of the Livingstone Assembly in July of 2006. He takes an interest in Bible class and attends Sunday service regularly. He joined their volunteer group to do cleanup work and has shown commitment by regularly attending the Reverend’s zoom sessions. Reverend Ko asked that as part of the accused’s sentence that he be asked to do volunteer work in his church.
Victim Impact Statements
[20] Victim Impact Statements were received from all four victims of the home invasion.
[21] Sara Wu who suffered a fractured arm as a result of the home invasion stated that it took more than half a year to recover from her injury and that her right hand is no longer as strong as it was before. This has impacted her work as a beautician. Previously she was able to serve six clients a day but finds it now difficult to cope with just two. She also finds it difficult for her to do house chores and to pick up heavier items. Ms. Wu also stated that she has difficulty sleeping which has had a great effect on her physical and mental health. In her statement she states,
I am almost 60 years old. To me, the emotional and mental toll I’ve been experiencing and the decline in work performance and reduction in income reduction of work performance and income are permanent damages which can never be recovered.
[22] Conrad Leung reports that his normal living in this peaceful community has changed completely. He reports that as head of the family he has to pretend nothing has happened just to hold the family together emotionally and balance things in all aspects of life. He further notes that this incident put him in a constant “alert” stage. He will wake up by a loud car passing by or any sound from the backyard in the middle of the night. He is only able to catch a few hours of sleep. He keeps asking himself, “why us, we did not do any harm to anyone, just not right”.
[23] Christopher Leung reports that the traumatic event that happened inside his home is something he will never forget as he doesn’t feel comfortable in his own house as he once was. He constantly questions himself as to what if it happens again and is my family and I safe. He still feels scared for the safety of his family.
[24] Calvin Leung also reports that he has not been able to sleep properly after the incident. He also states,
To this day, been guilt tripping myself about the decisions I’ve made during those nights and decisions I could’ve made the incident before it got out of hand. I live with all these guilts everyday as most things in the incident could’ve been prevented if I had just tackled the situation better. It took a huge toll on me emotionally knowing that I could’ve done better so my family didn’t have to experience the horror that they did.
[25] It is apparent that the victims of the home invasion have suffered a very traumatic event. As many judges who have dealt with these cases have noted, a home invasion is a very traumatic event. It represents a violation of the sanctity of the home and the sense of security people feel when in their homes. These are highly cherished values in our society.
Aggravating Factors
[26] There are a number of serious aggravating factors in this case.
[27] Mr. Chen does have two prior Criminal Code convictions. While these convictions pale in comparison to the current charges he faced and was convicted of, they were both relatively recent. His previous conviction for possession of break-in tools is also concerning.
[28] There is evidence that Mr. Chen participated in the planning of the home invasion. He initially was seen entering the Comfort Inn, together with the other persons involved in the home invasion prior to leaving the hotel and attending at the site of the break-in.
[29] It is also apparent that the victims of the home invasion have suffered significantly as a result of this incident. Ms. Wu suffered a fractured arm which took a significant time to heal and which has left her with a permanent disability. The emotional impact on other members of the family has been well documented. This is consistent with the nature of the home invasion which involved an imitation firearm and verbal threats including a threat to Christopher Leung that they intended to kill him.
[30] As previously noted, s. 348.1 of the Criminal Code specifically provides that an aggravating circumstance is that the dwelling-house was occupied at the time of the offence and that the person committing the offence knew or was reckless as to whether the dwelling-house was occupied and used violence or threats of violence to a person during the course of the home invasion.
Mitigating Circumstances
[31] There are some mitigating circumstances in this case. I accept the defence assertion that Mr. Chen was not the leader of the group who committed the home invasion. He was convicted under s. 21(2) of the Criminal Code. However, it is not possible to establish which of the four persons committed the unlawful acts.
[32] I accept that Mr. Chen has had a difficult life. He has only had a grade 5 education and was not able to master the English language after he came to Canada. It is also possible that he will be deported after completion of his sentence and may be subject to further harsh treatment if he is deported back to China.
[33] Given his limited criminal record, I accept that there is still a possibility for Mr. Chen’s rehabilitation if he remains in Canada. His children are an obvious concern for him and his involvement in this event poses a significant risk to his relationship with them. I accept that this should serve as a strong motivation to him for rehabilitation.
Analysis
[34] A home invasion is a very serious offence and has been recognized as such by the courts.
[35] In R. v. Wright, 2006 CanLII 40975 (ON CA), the Ontario Court of Appeal considered the range of sentences for a home invasion. Justice Blair with respect to the range commented as follows:
The cases to which we have been referred, and which my own research has uncovered, reflect a gamut of sentencing dispositions in “home invasion” cases from as low as four or five years, to as high as 11 to 13 years -- with the suggestion that even higher sentences may be reserved for situations involving kidnapping, the infliction of serious injuries, sexual assault or death.
[36] The court in that case noted that the objectives of protection of the public, general deterrence and denunciation are to be given priority in sentencing and that, “certainly, a stiff penitentiary sentence is generally called for”.
[37] In the Wright case, the court notes that the home invasion was planned and the family involved were targeted. The victims were forcibly confined and terrorized at gun point and subjected to significant emotional and psychological distress. The victims endured the ordeal for approximately 45 minutes and there was no indication that it would have ended or ended before even more harm was done had the police not arrived on the scene when they did. The Court of Appeal upheld an 8 year sentence imposed by the trial judge and described it as being “wholly appropriate having regard to all the circumstances”.
[38] The range of sentence for home invasions in the Wright case was once again referred to in the more recent decision of the Ontario Court of Appeal in R. v. Hopwood, 2020 ONCA 608.
[39] In the present case, Mr. Chen’s co-accused all pleaded guilty following the preliminary inquiry. I am advised that Mr. Zhen had a record between 2011 to 2018 for some non-violent offences. He received a sentence of 5 years for his role in this home invasion. Mr. Bishop and Mr. Asare both received sentences of 3 years. Mr. Asare had a conviction for possession of a Schedule I substance and lost his job at Canada Post. Mr. Bishop, who was 21 years old at the time, had no criminal record.
[40] The sentences given to Mr. Chen’s co-accused seem fairly lenient in light of the comments of Justice Blair in his decision in R. v. Wright. Nevertheless, I accept that the parity principle is a significant one that deserves serious consideration. As noted previously, s. 718.2 of the Criminal Code provides that a court in imposing a sentence shall take into consideration that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In the Ontario Court of Appeal decision in R. v. Mann, 2010 ONCA 342, the issue of parity was considered. In that decision Justice MacPherson explains that, “while parity is a guiding principle of sentencing, it is not, as stated by this court in R. v. Miller (J.) (2002), 2002 CanLII 45072 (ON CA), 163 O.A.C. 63, at para. 9, to be applied in an absolute fashion”. Parity is only one of a number of principles which must be taken into consideration in imposing an appropriate sentence and it cannot in and of itself dictate the result in all cases involving similar offenders committing similar crimes. Owing to the very nature of an individualized sentencing process, sentences imposed for offences of the same type will not always be identical.
[41] In this case, one of the major differences between Mr. Chen and his co-accused is that he did not enter a guilty plea. A guilty plea is entitled to a substantial credit in the sentencing process and one which justified a substantial reduction in sentence. As Mr. Chen did not plead guilty, he is not entitled to a similar reduction in his sentence.
[42] Taking into account the serious nature of this home invasion, but recognizing that the principle of parity is a significant consideration and taking into account both the aggravating and mitigating circumstances, I have concluded that Mr. Chen should be subject to imprisonment for a period of 5 years.
[43] I reject the defence submission that a 6 month sentence or a sentence of up to 2 years served in the community is a reasonable sentence. That proposal is simply not consistent with the range of sentences established in the caselaw and does not reflect the serious nature of the home invasion which occurred in this case.
Pre-Trial Custody
[44] Mr. Chen was in custody following his arrest for 8 days. He is therefore entitled to a credit of 12 days on his sentence. In addition, when granted bail, he was placed on house arrest. For the first year he wore an ankle bracelet. This was removed after a year, but he remained on house arrest. The terms of his bail permitted him to travel to and from his construction work from 5:00 a.m. to 10:00 p.m. while in the company of an employee of the business.
[45] In R. v. Downes, 2006 CanLII 3957 (ON CA), the Ontario Court of Appeal noted that stringent bail conditions, especially house arrest, represent an infringement on liberty and is a form of punishment although of a different character than actual incarceration. The court goes on to conclude that the time spent under stringent bail conditions, especially under house arrest, must be taken into account as relevant mitigating circumstances. In the Downes case, the defendant was under house arrest for 18 months. The Court of Appeal found that a credit of 5 months was appropriate.
[46] It is apparent that a court may not always give a specific credit for restrictive bail conditions. In R. v. Dragos, 2012 ONCA 538, the Ontario Court of Appeal in reviewing a judge’s sentencing reasons noted that, “a precise mathematical calculation of the credit to be given for pre-sentence bail is not required. What is required is that in a proper case consideration should be given to pre-sentence bail and in the final analysis the mitigating weight to be assigned to pre-sentence bail, if any, is a discretionary matter for the sentencing judge”.
[47] In the present case, the Crown submits that Mr. Chen should be given 3 to 5 months credit. Given that the Court of Appeal gave a 5 month credit for house arrests of 18 months, I have concluded that 5 months is not an adequate credit. In this case, Mr. Chen has been under house arrest for almost 3 years. However, the provisions of the house arrest have permitted him considerable latitude to be out of the house between the hours of 5:00 a.m. to 10:00 p.m. Taking into account the 8 days which he spent in jail following his arrest, I have concluded that Mr. Chen’s pre-trial custody credit should be 8 months.
Conclusion
[48] Mr. Chen would you please stand.
[49] Taking into account the principles of sentencing and balancing the aggravating and mitigating factors, I have concluded that you should be sentenced to 5 years imprisonment. Pre-trial custody credit is to be given to you in accordance with these Reasons. In addition, this sentence is to include the ancillary orders as described earlier.
Justice M. McKelvey
Released: June 2, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
BIN CHEN
Defendant
REASONS FOR SENTENCE
Justice M. McKelvey
Released: June 2, 2023