ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – ABU MANDAL Defendant

Counsel: Joseph Dart, for the Crown Gregory Lafontaine, for the Accused

HEARD: August 8, 2023

REASONS FOR SENTENCE

Muszynski J.

OVERVIEW

[1] On March 7, 2023, I convicted Abu Mandal of a single count of selling items intending they be used in the production of a substance in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”) contrary to s. 7.1(1): see His Majesty the King v. Abu Mandal, 2023 ONSC 1545.

[2] I heard sentencing submissions on August 8, 2023. On August 23, 2023, I gave my reasons for sentence orally. At the conclusion, counsel for Mr. Mandal requested that I delay imposing my sentence to allow him an opportunity to file material for bail pending appeal. The Crown did not take a position on the defence request; accordingly, the matter was adjourned to September 11, 2023.

CIRCUMSTANCES OF THE OFFENCE

[3] Mr. Mandal first became of interest to police when he was observed meeting with The Khan Pham, an individual under investigation for running an illegal methamphetamine lab. The methamphetamine lab was raided on April 6, 2019. Mr. Pham and two of his colleagues were arrested. In total, over 26 kilograms of completed methamphetamine were seized by police along with the numerous drums of toluene, caustic soda, and ephedrine tablets – all ingredients required to produce methamphetamine. Mr. Pham’s cell phone was seized, and the data extracted.

[4] The cell phone extraction reports were entered into evidence at trial and confirmed that Mr. Pham and Mr. Mandal started communicating via text message on January 23, 2019. Over the next several months, before Mr. Pham’s arrest, there were over one hundred text messages exchanged between Mr. Pham and Mr. Mandal. At trial, I found as a fact that the text messages were compelling evidence that Mr. Mandal sold chemicals and other items to Mr. Pham intending they be used to produce methamphetamine.

[5] The text messages are, to some extent, coded. As would be expected of an illicit transaction, there are no invoices or formal records of the sales to Mr. Pham. It is unclear the exact quantities of goods that Mr. Mandal sold to Mr. Pham or whether everything seized from the methamphetamine lab was produced with products supplied by Mr. Mandal. That said, the text messages confirm that Mr. Mandal charged Mr. Pham $21,000 for one shipment of goods, including chemicals and supplies used in the production of methamphetamine.

CIRCUMSTANCES OF MR. MANDAL

[6] Mr. Mandal did not testify at trial. There was no pre-sentence report. Accordingly, Mr. Mandal’s personal circumstances can only be gleaned through the evidence at trial gathered as part of the police investigation and through submissions of counsel at the sentencing hearing.

[7] Mr. Mandal was born in Guyana in 1946. He is presently 77 years old. He is now fully retired from his previous profession, running an autobody shop and distributing chemicals. Mr. Mandal is married and has four adult children. He has no criminal record.

[8] For the past seven years, Mr. Mandal has been the religious leader of the Mosque in Trenton and has been involved in various charitable undertakings in the community.

[9] There were no health records admitted into evidence, but it is submitted that Mr. Mandal is diabetic, has kidney issues, and has had a heart by-pass.

POSITION OF THE PARTIES

[10] The Crown submits that a custodial sentence of 2.5 years is justified in this case. The only ancillary order the Crown is seeking is a DNA order, which is discretionary for this offence. The aggravating factors identified by the Crown include: the serious harm methamphetamine can cause to users and the community; the fact that Mr. Mandal was supplying items to a significant operation that had produced at least 26 kilograms of methamphetamine with the ability to produce more; the critical role Mr. Mandal played in supplying the items necessary for production; and the absence of evidence that Mr. Mandal was an addict leaves the only conclusion that he was engaged in this enterprise purely for profit. The Crown submits that the sole mitigating factor is the fact that Mr. Mandal has no criminal record.

[11] Mr. Mandal takes the position that a fit sentence would be either a fine of $5,000 and 3-years probation, or a conditional sentence. Further, Mr. Mandal submits that it would be inappropriate to make a discretionary DNA order because, given his age, the likelihood of reoffending is extremely low. He is embarrassed and ashamed of the conviction. Mr. Mandal submits that a distinction should be made between selling discrete items to Mr. Pham and being a conspirator involved in the large operation – which he was not. Mr. Mandal’s sentence should reflect his limited role. Finally, it is submitted that Mr. Mandal’s lack of criminal record and age should play a mitigating role in his sentence.

SUMMARY OF CASELAW

[12] As I noted in my trial decision, there is very little caselaw involving s. 7.1(1) of the CDSA.

[13] The Crown relies on the following cases to support its position that Mr. Mandal should receive a 2.5-year custodial sentence:

a. R. v. Qu, 2008 ONCJ 374: Ms. Qu was sentenced to 3 years in custody after a guilty plea to conspiring to produce ecstasy. Ms. Qu, a 44-year-old first time offender, mother of two, knowingly stored a precursor chemical at her home. The amount of chemicals seized from Ms. Qu’s home had a wholesale value of over $1 million. Expert evidence confirmed that the “drug yield” was up to 14 million tablets. b. R. v. Newman, 2009 BCSC 522, aff’d 2010 BCCA 109: Mr. Newman was sentenced to a 2 year less a day conditional sentence after being found guilty a trial of transporting, selling, and possessing a precursor chemical. The quantity of the precursor chemical could produce 88 kilograms of methamphetamine. Mr. Newman was a 37-year-old first time offender and father of two young children. The trial judge was not persuaded that Mr. Newman intended that the precursor chemical be used to produce methamphetamine. c. R. v. Chui, 2015 ONSC 2490: Mr. Chui received a global sentence of 7 years imprisonment after being found guilty at trial of producing methamphetamine, possessing methamphetamine for the purpose of trafficking, possessing precursor chemicals and arson by negligence. 210 grams of crystalized methamphetamine were seized and precursor chemicals that could have produced up to 5.65 kilograms. The sentence on the precursor count was 3 years imprisonment. d. R. v. Ngo, 2023 ONSC 282: Mr. Ngo received a global sentence of 7 years in custody after being found guilty at trial of producing methamphetamine, possessing methamphetamine for the purpose of trafficking, and possessing proceeds of crime over $5,000. This case emphasized the staggering harm of drug abuse and, specifically, methamphetamine as previously recognized by the Supreme Court of Canada. e. R. v. Pham, Belleville, Unreported, CR-20-000007-00 (ONSC): Mr. Pham, the individual to whom Mr. Mandal sold chemicals and supplies, was sentenced following a trial to 10.5 years in custody.

[14] Mr. Mandal submits that the cases relied upon by the Crown can be distinguished as the offenders in those cases played a more significant role in the drug operations. Instead, Mr. Mandal relies on the case of R. v. Sadowski, 2016 ONCJ 429. Mr. Sadowski was convicted at trial of importing a controlled substance, hypophosphorous acid – a precursor to the production of methamphetamine – and received a conditional discharge with a probation period of 16 months and 150 hours of community service. The Crown did not establish that Mr. Sadowski, a 34-year-old first-time offender, intentionally imported the acid for an illegal purpose.

PRINCIPLES OF SENTENCING

[15] The principles of sentencing are largely codified. Section 718 of the Criminal Code, R.S.C. 1985, c. C-46, sets out the fundamental purpose of sentencing which 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 sentences that have one or more of the following objectives:

a. denouncing unlawful conduct; b. deterring the offender and others from committing crimes; c. separating offenders from society where necessary; d. assisting in the rehabilitation of the offender; e. providing reparations for harm done to the victim or to the community; f. promoting a sense of responsibility in the offender; and g. acknowledging the harm done to victims and the community.

[16] The principle of proportionality is set out in s. 718.1 of the Criminal Code. This is a foundational principle of sentencing. Any sentence I impose must reflect the gravity of the offence and the responsibility of the offender.

[17] I am also required by s. 718.2 of the Criminal Code to take the following matters into consideration when imposing a sentence:

a. the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; b. the sentence should be like sentences imposed on similar offenders for similar offences committed in similar circumstances; c. offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and d. all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victim or the community should be considered for all offenders.

[18] Section 10 of the CDSA provides further guidance on sentencing in the context of drug offences, although none of the aggravating factors identified in the provision apply in this particular case.

[19] Courts have repeatedly held that in cases involving hard drugs such as methamphetamine, denunciation and deterrence are the primary factors to consider in reaching a fit and just sentence.

ANALYSIS

[20] Determining a fit and just sentence for any offender can be a challenging exercise. This is compounded when there is a dearth of caselaw on point.

[21] A conviction under s. 7.1(1) of the CDSA is subject to a maximum term of up to ten years imprisonment.

[22] The Crown relies on Qu and Chui to demonstrate that a period of incarceration is appropriate in this case. In my view, both Qu and Chui can be distinguished. In Qu, the offender was convicted with conspiring to produce a controlled substance. In Chui, the offender was the mastermind behind the methamphetamine lab operation that was ultimately discovered when firefighters responded to reports of a fire in the lab.

[23] Mr. Mandal urges the court against imposing a custodial sentence. In doing so, he relies on the cases of Newman and Sadowski. The key distinction between Newman and Sadowski and this case is the intention of the offender. Unlike Newman and Sadowski, I found that Mr. Mandal knew that Mr. Pham was purchasing the chemicals to use in the production of methamphetamine.

Mitigating and Aggravating Circumstances

[24] There was no guilty plea. While this does not constitute an aggravating factor, Mr. Mandal does not benefit from the mitigating effect of a guilty plea at sentencing.

[25] Mr. Mandal has no criminal record. This is the chief mitigating factor that I consider in coming to a fit and just sentence.

[26] There are no letters of support from the community or family members in evidence on sentencing; however, counsel for Mr. Mandal submits that the court should consider Mr. Mandal’s role as a religious leader and his involvement in charitable works as mitigating factors in sentencing. Without evidence, I decline to consider Mr. Mandal’s community involvement as a mitigating factor per se; however, I do consider Mr. Mandal’s role in the community as part of his personal circumstances in reaching a fit and just sentence.

[27] There is no evidence that Mr. Mandal had a compelling personal motivation such as addiction or financial hardship that would act as a mitigating factor. Mr. Mandal’s involvement in Mr. Pham’s drug operation was commercial in nature; it was purely for profit. I find this to be an aggravating factor that I consider in reaching a fit and just sentence.

[28] Methamphetamine is a dangerous, highly addictive, hard drug. Courts have routinely identified the harm that methamphetamine causes to both users and the broader community: R. v. Cote, 2002 BCCA 29, 162 B.C.A.C. 168, at para. 10.

[29] Mr. Mandal knew that Mr. Pham was producing methamphetamine with the products he supplied. Mr. Mandal was not the mastermind behind the entire drug operation, but his role cannot be minimized. Mr. Mandal required a special license to purchase many of the chemicals he sold to Mr. Pham. Through Mr. Mandal, Mr. Pham obtained access to the chemicals and supplies he needed to produce methamphetamine. Without suppliers like Mr. Mandal, dangerous drugs such as methamphetamine cannot be produced and sold in our communities. I consider the insidious nature of hard drugs, including methamphetamine, as an aggravating factor in coming to a fit and just sentence.

[30] I decline to consider the significant volume of drugs ultimately seized by the police following the raid of the methamphetamine lab as an aggravating factor. There is no evidence that Mr. Mandal was the exclusive supplier of chemicals for Mr. Pham’s methamphetamine lab. There is no evidence on the exact quantities of products that were supplied to Mr. Pham by Mr. Mandal, or any calculation as to the ultimate drug yield that those products might produce. There is no evidence that Mr. Mandal ever visited the methamphetamine lab, or that he was aware it was a sophisticated, large-scale operation.

Mr. Mandal’s Personal Circumstances

[31] Mr. Mandal is 77 years old. I must consider the extent to which his age should be considered in determining a fit and just sentence.

[32] The advanced age of an offender does not automatically act as a mitigating factor in sentencing, but it is a relevant consideration: R. v. Premji, 2021 ONCA 721, at paras. 4-5.

[33] The age of an offender is relevant at sentencing because an older offender has reduced opportunities to reoffend: AYO and Others v. R., [2022] EWCA Crim 1271, at para. 13. Further, whether imprisonment would represent a greater hardship on a particular offender due to their personal circumstances can be considered at the sentencing stage: R. v. El-Azrak, 2023 ONCA 440, at para. 144. A period of incarceration for an older offender proportionately represents a greater deprivation of liberty when the remaining life span of the offender is considered.

[34] Mr. Mandal’s advanced age is a factor that I consider in determining a fit and just sentence. I find that given Mr. Mandal’s age, he is at a low risk of reoffending and that a custodial sentence would be a greater hardship for him than a more youthful offender.

[35] There was no evidence of Mr. Mandal’s health situation. That said, during sentencing submissions, counsel alerted the court to the fact that Mr. Mandal is diabetic, has kidney problems, and has had heart by-pass surgery. Since there is no evidence to suggest that these conditions cannot be treated while in custody, I have not taken Mr. Mandal’s health into consideration in any meaningful way in determining a fit and just sentence: R. v. Hamouth, 2023 ONCA 518, at para. 66.

Pre-Sentence Custody

[36] There is no pre-sentence custody.

CONCLUSION

[37] In supplying chemicals and supplies to Mr. Pham, Mr. Mandal played a critical role in an illegal operation to produce methamphetamine. Mr. Mandal may not have been the chemist. He may not have been the trafficker, or the drug dealer. He is, nonetheless, morally blameworthy for his participation as supplier of chemicals and supplies. His actions must be denounced, and others must be deterred from engaging in such endeavours.

[38] After considering the sentencing objectives, the cases relied on by the parties, the mitigating and aggravating factors that apply in this case, the general principle that a sentence should be proportionate to an offender’s moral blameworthiness, Mr. Mandal’s personal circumstances including his age, his role in the community and the need to exercise restraint, I decline to order a conditional sentence and find that a period of incarceration is warranted.

[39] The 2.5-year custodial sentence proposed by the Crown is, in my view, excessive considering Mr. Mandal’s personal circumstances, most notably, his age.

[40] I find that a fit and just sentence in this case is 1 year in custody, followed by 2 years probation. In addition to the statutory conditions, Mr. Mandal shall:

a. report to a probation officer within 5 business days of release from custody; b. report to a probation officer as required; c. not associate with anyone known to him as having been convicted with a CDSA offence; d. not associate with The Khan Pham; e. not possess any non-prescription drugs or any drug related paraphernalia.

[41] Due to the low likelihood of reoffending, I decline to make a DNA order.

Muszynski J.

Released: September 11, 2023

COURT FILE NO.: CR-22-000034-00 DATE: 20230911 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – ABU MANDAL REASONS FOR SENTENCE Justice K. Muszynski

Released: September 11, 2023