COURT FILE NO.: CR-21-90000452-0000 DATE: 20230928 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - Jun Peng Wu, XU CHEN, CARMEN HERNANDEZ, ABU MANDAL, and LUAN NGO

Counsel: Althea Francis, for the Crown Kim Schofield, for Mr. Wu

Heard: June 2 and August 23, 2023

M. Forestell J.

Reasons for Sentencing of Jun Peng Wu

Overview

[1] Mr. Wu pleaded guilty on June 2, 2023, to possession of 60 kilograms of MDMA for the purpose of trafficking and possession of proceeds of crime under $5,000.00.

[2] The Crown seeks a sentence of three to five years’ imprisonment. Counsel for Mr. Wu seeks a conditional sentence in light of the exceptional circumstances of this case.

Circumstances of the Offences

[3] The circumstances of the case are set out in the agreed facts. On May 11, 2020, police executed a search warrant at the residence of Mr. Wu. They located 60 kilograms of MDMA comprised of 215,000 tablets. They also located $1,365.00 in Canadian currency, two pill presses and machinery for a pill press. The items were found in the basement and garage of the residence. The MDMA and pill presses belonged to Mr. Wu’s late father. They had been in the residence since the death of his father nine years before the seizure. Mr. Wu entered a guilty plea based on his knowledge of the presence of the drugs and his general intention to sell the tablets, if possible, at some later date. He believed the MDMA to be of very poor quality and did not expect to easily sell it or get much money for it. He took no steps towards selling it.

[4] During the search, police also located, in the vehicle driven by Mr. Wu, tin foil with a small quantity of suspected methamphetamine crystals and drinking straws with foil.

Circumstances of the Offender

[5] Mr. Wu is 36 years old. He was 34 years old at the time of the offences. He was born in China and moved to Canada in 2002 when Mr. Wu was 15 years old. His father had moved to Canada in 1993. Mr. Wu’s father had a longstanding drug addiction and was unsuccessful in treatment for his addiction. He died in 2012.

[6] Mr. Wu was raised largely by his mother. Although he did well in school, Mr. Wu left school to work and to support himself and his mother. He and his mother ran a clothing business from 2010 to 2020. The business was forced to close as a result of the pandemic. Mr. Wu has been working at StanDirect Kitchen Appliances since the closure of his business. His employer provided a letter of support for Mr. Wu. The letter describes Mr. Wu’s strong work ethic and collaborative attitude. Mr. Wu’s mother, two cousins and friend also provided letters of support. Mr. Wu supports his mother who is in poor health.

[7] At the time of the offences Mr. Wu was using methamphetamine. This substance use led to the police investigation and the search of his home. The items found in his car related to that substance use. He has stopped using methamphetamine.

[8] Mr. Wu’s mother in her letter wrote that Mr. Wu had learned from the experience of his arrest and that he is remorseful. Mr. Wu in his comments to the court expressed his remorse and his gratitude to employer for her support which has assisted him in finding stability in his life and for acting as a role model for him.

[9] Mr. Wu has no prior criminal record.

Analysis

[10] In determining a fit sentence, I have considered the sentencing principles set out in the Criminal Code, R.S.C., 1985, c. C-46.

[11] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sentences that have certain enumerated objectives including denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the community and promoting a sense of responsibility in the offender.

[12] Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[13] I have also borne in mind the principles that:

• a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• that offenders should not be deprived of liberty if less restrictive sanctions are appropriate; and that
• all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[14] The aggravating factor in this case is the amount of MDMA possessed and the nature of the drug. As observed by Hill J. in R. v. Fong, 2006 ONSC 3767, at para. 42, MDMA is a harmful drug with real health risks.

[15] Mitigating factors are that Mr. Wu is a first offender who has taken significant steps toward rehabilitation during his time on bail. He is employed and cares for his mother. He has support in the community from family and friends. He was using methamphetamine at the time of the offence but no longer uses it. He has expressed remorse through his guilty plea and has saved court resources at a time when there is a considerable backlog in the courts.

[16] Possession of MDMA at the kilogram level for the purpose of trafficking would usually attract a penitentiary sentence.

[17] The parties in this case agree that the range of sentence for possession of MDMA at the multi-kilo level is three to five years. In cases where the offender possessed large quantities of MDMA with other drugs such as methamphetamine, ketamine or cocaine, the sentences imposed fall at the upper end of this range or higher (see R. v. Ma, 2005 BCSC 493; R. v. Wu, 2014 ONSC 6000; R. v. Zhang, 2014 ONSC 3132).

[18] In R. v. Amare, 2015 ONCA 673, [2015] O.J. No. 5193 the Court of Appeal for Ontario upheld a sentence of four years’ imprisonment for an offender who possessed approximately 100,000 MDMA pills and 1.9 kilos of MDMA powder. The predominant sentencing objectives were acknowledged to be general deterrence and denunciation. The Court noted that the drugs were destined for sale in the community when they were found in the offender’s car. Mr. Amare was a first offender. He did not plead guilty.

[19] In Fong, Justice Hill imposed a sentence of two years’ imprisonment with one and one-half months’ credit for presentence custody on a first offender who pleaded guilty to possession of MDMA for the purpose of trafficking, having been found in possession of just over 10,000 tablets. In that case, the offender was actively selling the pills having sold a sample of 28 pills to an undercover officer.

[20] While the parties agree on the range of sentence for possession of multi-kilos of MDMA, counsel for Mr. Wu argues that the exceptional facts of this case justify a sentence outside that range. Although Mr. Wu technically possessed the MDMA for the purpose of trafficking, his case is distinguishable from cases where the offender was actively involved in trafficking or attempting to traffic the drug. Additionally, the potency of the tablets in this case was believed by Mr. Wu to be substantially diminished.

[21] Sentencing ranges are guidelines and not hard and fast rules. Sentencing must be fact-specific and individualized. (R. v. Lacasse, 2015 SCC 64)

[22] Possession of such a large amount of MDMA generally occurs in the context of ongoing or imminent attempts to traffic the drug- alone or with other drugs. In this case, Mr. Wu’s possession of the drug for the purpose of trafficking fell on the very low end of the spectrum of seriousness because of the absence of any effort to sell the MDMA and any concrete plan to do so.

[23] I find that the circumstances of these offences are unique and, considered with the other mitigating factors in this case, justify the imposition of a reformatory sentence.

[24] Counsel for Mr. Wu seeks a conditional sentence. In order to impose a conditional sentence, there are four statutory preconditions that must be satisfied. The first three are satisfied in this case: (i) there is no minimum sentence; (ii) a sentence of less than two years’ imprisonment is appropriate; and (iii) a conditional sentence would not endanger the public. The last precondition is that a conditional sentence must be consistent with the fundamental purpose and principles of sentencing.

[25] I recognize that possession of MDMA for the purpose of trafficking is a serious offence and that denunciation and deterrence are important objectives in sentencing for this type of offence. However, as our Court of Appeal and the Supreme Court of Canada have observed, imprisonment is not the only means by which deterrence and denunciation can be achieved. Conditional sentences can provide a significant degree of deterrence and denunciation when onerous conditions are imposed.

[26] I find that the objectives of denunciation and deterrence can be satisfied by the imposition of a conditional sentence in this case. The rehabilitation of Mr. Wu is also a valid sentencing objective, particularly since Mr. Wu is a first offender. This objective is advanced by a conditional sentence that will allow Mr. Wu to continue his employment and to continue to care for his mother.

Sentence

[27] I therefore impose the following sentence: two years less a day to be served in the community on the following terms:

1. The mandatory statutory conditions as set out in s.742.3(1) of the Criminal Code.
2. In addition to the statutory terms, it is ordered that Mr. Wu comply with the following conditions: (a) For the first 12 months of the sentence, he is to be at his residence at all times except for the following reasons: (i) reporting to his supervisor; (ii) attendance at his place of employment or school, including travel directly to and from his place of employment or school; (iii) attendance at scheduled counselling, medical or dental appointments for himself or his mother; (iv) dealing with any medical emergency affecting him or a member of his immediate family; (v) a four-hour period weekly, the precise time to be agreed upon by his supervisor, during which time he may attend to personal matters such as banking, shopping and household errands; (vi) travel to and from any of these activities; (vii) at any other time with the prior written permission of the supervisor. (b) For the next 12 months less a day of the sentence, he is not to be away from his residence between 11:00 p.m. and 6:00 a.m. except in the event of a medical emergency affecting him or a member of his immediate family, or for employment, or with the prior written permission of his supervisor; and (c) Throughout the sentence: He is to make reasonable efforts to maintain employment or attend school.

[28] In addition, there will be an order under s. 109 of the Code prohibiting Mr. Wu from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for 10 years and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[29] In light of the nature of the offence and Mr. Wu’s background and circumstances, I am satisfied that it is in the best interests of the administration of justice that a DNA order should be made.

[30] On consent, there will be a forfeiture order in the form of the draft order provided.

M. Forestell J. Released: September 28, 2023