COURT FILE NO.: CR-23-10000596
DATE: 20240306
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: His majesty the king,
AND:
zeyu zang, Defendant
BEFORE: S.F. Dunphy J.
COUNSEL: Erin Pancer, Colin Sheppard and Christopher Assie, for the Crown
Laura Villani, for the Defendant
HEARD at Toronto: February 22, 2024
REASONS FOR DECISION - SENTENCING
[1] Mr. Zang is before me for sentencing following his conviction by a jury on October 21, 2023 on charges of kidnapping (s. 279) and overcoming resistance to the commission of an offence (s. 246(b)).
[2] The victim of these crimes was Mr. Wenbo Jin, a foreign student studying at the University of Toronto. Mr. Jin was liberated by Toronto Police on February 2, 2020 after thirteen days fearing for his life, knowing nothing of where he was, bound hand and foot and blindfolded in a specially-prepared house in Richmond Hill. Mr. Zang was the chief architect, investor, paymaster and directing mind of this scheme. He conceived of it and recruited the various assistants who played roles both large and small. It was a plan developed and carried into execution at his direction over a span of several weeks. It was only thwarted by an intensive police investigation that managed to locate the house in which the victim was being held.
[3] For the reasons that follow, I am sentencing Mr. Zang to twenty years in prison for kidnapping and to three years concurrent for overcoming resistance. In my view, Mr. Zang’s role as mastermind of this carefully planned crime warrants an exemplary sentence at or near the top of the range. While there is logic and jurisprudence to support a consecutive sentence for overcoming resistance, in my view the totality principle precludes such a conclusion. I cannot find that the circumstances for making an order restricting parole under s. 743.6 of the Criminal Code have been made out here.
Circumstances of the Offences
[4] In January 2020, Mr. Wenbo Jin was a foreign student enrolled in his fifth year at the University of Toronto. He lived in a small condominium unit a short walk from the University campus in downtown Toronto and had a small circle of friends. Unbeknownst to him, his circle of friends had been penetrated by a predator and his movements were being watched with a view to kidnapping him and extracting several million dollars in ransom from his father in China.
[5] In the early morning hours of January 21, 2020, Mr. Jin was awakened by two men who had entered his apartment one of whom held what he took to be a gun to his head. His key had been surreptitiously copied a few days earlier while he was at a social event with friends in Markham. Both men were masked. His hands and feet were swiftly bound with zip ties and duct tape was used to blindfold and gag him. He was made to stand for several hours and ordered to ingest various pills of unknown composition to render him unconscious. These succeeded only in making him sleepy and could not overcome the surging adrenaline that was doubtless keeping him on his feet. After unsuccessfully waiting for the pills to take effect and forcing Mr. Jin to ingest still more of them, his two captors ordered him to get into a hockey equipment bag and threatened him should he move or make any noise. Mr. Zang was monitoring the progress of events nearby. He had issued the men with instructions to use a taser device to subdue Mr. Jin should he fail to comply. Tightly confined in this fashion, Mr. Jin was wheeled out of his apartment, down the elevator and into the back of a waiting van arranged by Mr. Zang. He thought he was suffocating. The vehicle then drove to a prepared house in Richmond Hill.
[6] Confined inside the hockey bag in the back of the van, the drugs eventually succeeded in putting Mr. Jin to sleep. He had no idea for how long he was out or where he was being taken to. When he came to he believed he had been transported to Montreal.
[7] The Richmond Hill house had been carefully prepared for his captivity. The bedroom where he was to be held was secured with a lock and a surveillance camera was installed to monitor the door out of the room. The only window in the room was boarded up and shades drawn. It was equipped with a mattress on the floor and a large bucket in which he was expected to relieve himself. A second bedroom of the house had been similarly prepared with boards and an exterior lock.
[8] A team of guards had been arranged to watch him and feed him from time to time. Zip-ties were replaced with chains and a cloth blindfold replaced the duct tape preciously applied. He remained bound hand and foot and blindfolded in that closed room for thirteen days. During that time, he was initially required to relieve himself in the bin in his room only later being allowed to be led to the bathroom while under close watch as his captivity wore on. He was given some food to eat, but not enough to prevent him from losing almost a pound a day during his ordeal. He was ordered to surrender his telephone pass codes and to participate in two ransom calls to his family. His wallet and identification were taken. He feared death at any moment the entire time.
[9] He was held for 13 days in those conditions. Suspended in an agony of uncertainty between life and death until he was rescued by police on February 2, 2020.
[10] This crime was a complex and highly planned operation. Mr. Zang directed every aspect of the preparations and the execution of the plan from its inception in early December 2019 until police rescued Mr. Jin on February 2, 2020. The numerous participants in the crime were either recruited by him or by others at his direction. The record of evidence at trial is replete with Mr. Zang’s detailed instructions, written and oral, to various members of the team he recruited and directed. Various supplies were acquired: walkie-talkies, balaclavas, duct tape, chains and zip ties, security cameras, an equipment bag and trolley to transport the victim, a combination club and taser device among others. A get-away van was acquired along with a supply of stolen license plates to foil surveillance cameras. A crew was hired to carry out the abduction and conduct surveillance over a span of several weeks. Arrangements were made to place a tracking device on Mr. Jin’s vehicle. His keys were taken from his coat pocket and secretly copied while he was attending a party at a residence in Markham with the cooperation of an as-yet unidentified associate of Mr. Zang who knew Mr. Jin. The keys were used to scope out his apartment while he was out one night and to steal money and various other items from it. Two teams were created – one to conduct the extraction and one to watch over the victim in captivity. There were also various stringers recruited for discrete roles to drive vehicles, open doors or run errands. Research on how to receive and securely transfer a ransom from China and how to acquire and transfer Bitcoin was undertaken. In addition to the prepared Richmond Hill house where the victim was to be stored, another house was rented in Scarborough to conduct planning meetings and to assemble the extraction team. Mr. Zang rented this house on December 17, 2019 using a forged driver’s license in a false name – a box of blanks for which was found in his apartment after his arrest. A first attempt to kidnap Mr. Jin at his apartment was called off. A new member of the team was recruited on short notice when another team member declined to participate for the second kidnap attempt at his apartment.
[11] This was by any account a sophisticated, meticulously planned crime involving eight or more individuals performing various roles over a span of several weeks. In one text exchange Mr. Zang mentioned having already spent more than $20,000 in preparing the kidnapping more than a week before it was actually carried out.
[12] Mr. Zang’s role as the chief architect of this criminal operation cannot be doubted. Others played a significant role, but clearly did so under his overall command. His was the authority to hire and fire, to order the plan into action or to order the team back to base. Text messages and audio messages extracted from Mr. Zang’s own cell phones and those of other participants in the operation leave no doubt as to his deep involvement in directing or supervising virtually every phase of this crime from its inception to its collapse when police raided the Richmond Hill home to which they had removed the victim.
[13] Mr. Zang attempted to use cut-outs to insulate him from being connected to this crime. He sent others into Mr. Jin’s apartment to abduct him and supervised them remotely while stationed nearby. He used “burner” phones registered to false names. He directed others to drive the vehicles, watch over the victim and even to place the ransom calls. His precautions were of course far from perfect as he was indeed caught. However, the ends to which he went to disguise his involvement further underscore the degree of careful planning he put into this scheme. This crime was neither hasty nor rushed. There were plenty of opportunities to back out before Mr. Jin was kidnapped and his life turned upside-down.
[14] Fortunately for Mr. Jin, the unfolding pandemic in China plausibly complicated the task of assembling and arranging for the transmission of the approximately $5 million in Bitcoin ransom demanded. His father ignored warnings not to inform police and immediately jumped on a plane to Toronto and cooperated with police in their investigation. Police were eventually able to track the location of the phones from which the ransom demands were made and eventually to locate and place under surveillance the house where Mr. Jin was held.
[15] In the afternoon of February 2, 2020, a police team executed a dynamic entry warrant, arrested the occupants of the house and liberated Mr. Jin. Mr. Zang was not present at the house at this time but was arrested near his apartment the next day.
Circumstances of the Offender
[16] Mr. Zang is 37 years of age, unmarried and without children. Born in China in 1986, he came to Canada on a student visa in 2009 and attended College and received a diploma in Business Operations in 2014. He did not return to China when his studies were completed and appears to have worked for approximately 2.5 years at a printing company in Peterborough. It is not clear whether he ever did in fact receive a work visa. That job came to an end following a serious automobile accident in 2017.
[17] The pre-sentence report indicates that he has been subject to a deportation order since 2017 which, for reasons unknown, had not been acted upon prior to his arrest for these crimes on February 3, 2020. It thus appears that Mr. Zang was and is without any legal status in Canada at the time this offence was conceived of and carried into execution between January 2019 and early February 2020.
[18] The presentence report indicates that Mr. Zang had difficulties at home in China. He was an only child and had a father whom he described as strict to the point of abusive. He reported that his father put his beloved pet dog down while he was away at school. This apparently led to a falling out which culminated in Mr. Zang being cut off from further parental support while away at school. He remains, as far as is known, estranged from his family.
[19] Mr. Zang’s criminal record, produced by the Crown as a sentencing exhibit, reports his first conviction as occurring in August 2016 when he was convicted of identity fraud, resisting arrest, failure to comply with recognizance (x3) and received fines, an intermittent sentence and probation. In March 2019, he was convicted of identity theft and possession of instruments of forgery and given a fine plus credit for 21 days of pre-sentence custody. In April 2019 he was convicted for failure to comply and received credit for 21 days of pre-sentence custody. How and when a deportation order intervened in 2017 is not completely clear, but the existence of such an order suggests that lawful employment ceased to be an option thereafter if it ever had been before then.
[20] Following his arrest in this case, Mr. Zang was granted bail on house-arrest terms on March 18, 2020 after 44 days in custody. That bail was revoked on March 22, 2022 when he was arrested for another matter in Oshawa. He has been in custody since. There were two further convictions entered after his arrest which contain no data as to the date of arrest (on the record before me): (i) March 25, 2020 convictions for possession of an identity document and possession of instruments of forgery for which a suspended sentence, probation and credit for 60 days presentence custody was given; (ii) December 16, 2021 convictions for using a forged document, resisting arrest and failure to comply with an undertaking for which a 6 month conditional sentence was received.
[21] There is no evidence of Mr. Zang having held down any gainful employment after 2017 before me. When arrested, Mr. Zang was living a lifestyle betraying no suggestion of financial stress despite the lack of any known licit source of income. He drove a late model Jeep, had an apartment in a condominium building and invited confederates in his scheme on several occasions to a social club in Markham where he was described by one witness as a VIP. His means of support since 2017 are opaque.
[22] It is fair to observe that Mr. Zang has been before the courts and police on a fairly steady basis following his graduation and prior to these events although the gravity of the offences that brought him there were significantly less severe than the present case. I also cannot help but observe that identity fraud and forgery of documents represent a consistent thread that can be followed through his prior record. Those same “skills” also played a significant role in planning and carrying out the crime in the present case.
[23] While on bail after his arrest in this case, Mr. Zang entered into a long-term romantic relationship and moved in with a woman. He describes that relationship as a positive one that has persisted despite the revocation of his bail and his subsequent detention prior to trial.
Impact upon the victim
[24] It is hard to comprehend the degree of harm inflicted upon the victim by this crime. He was awakened at home in the middle of the night and in his bed with what he believed was a gun pointed at him. He was made to stand at the foot of his bed for several hours blindfolded and ordered to ingest unknown drugs that made him drowsy. He feared for his life at every moment. He was then forced into a dark bag that was zipped up around him leaving him with a feeling of suffocation. He was threatened with dire consequences should he resist and was carried out to a vehicle. He was held in the dark, bound and blindfolded and in a constant state of terror for almost two weeks. He lost significant weight and endured constant stress. He was given access only to a large bin inside the bedroom to relieve himself, eventually (after several days) being led to the bathroom in the house where he was allowed to use a toilet under close and constant supervision.
[25] Mr. Jin was five years into his Canadian studies. These were cut brutally short by the kidnapping and his subsequent return to China after his release. He had to try to pick up the pieces of his interrupted education back in China with the irretrievable loss of academic time and career opportunities that can easily be imagined.
[26] His privacy and personal life have also been drastically upended. Not only did criminals obtain his house keys from an unknown “friend” and search his apartment, but the events of his kidnapping and release garnered significant publicity both in Canada and in China. His photograph and personal information are forever on the internet affecting his relations with friends and co-workers past and future and forcing him to relive the experience over and over again when he most wants to forget it. For a time, he slept with the lights on. His trust in people has been damaged and he finds himself living in constant fear.
[27] The damage to his physical and mental health has been severe. It is quite likely that Mr. Jin will bear the scars of this nightmare with him for life.
[28] His family too has been subjected to tremendous anguish, pain and suffering. Mr. Jin is an only child. His mother was in poor health beforehand, and this incident has caused her health to decline still further. His father had a heart condition and was rendered ill on several occasions during this ordeal and required medication. The road to recovery for them will be long as well.
Aggravating and Mitigating Circumstances
(a) Aggravating
[29] I find that the following aggravating circumstances have been proved beyond reasonable doubt:
a. The harm to the victim and his family - I have described this earlier and will not repeat that description here;.
b. The fact that his home was invaded to carry out this offence while he slept, violating as completely as can be his sense of security and well-being in what should have been a place of safety and refuge;
c. The high degree of planning and co-ordination displayed involving no fewer than eight individuals in varying roles that went into this crime – this crime was as far removed from an out-of-character spontaneous action or a crime of passion as can be imagined;
d. The very central role of Mr. Zang as the organizer, architect and directing mind of the operation as described above;
e. The motive underlying Mr. Zang’s planning of and participation in this crime which very clearly was nothing but greed;
f. The use of realistic replica weapons both to subdue Mr. Jin in his own home and their presence in the Richmond Hill home in which he was held captive;
g. The restraints (zip ties, duct tape, chains, blindfolds) applied to the victim both at the time of the initial taking of the victim and throughout his captivity; and
h. The humiliation of being required to relieve himself in a bucket for the first few days and thereafter in a toilet in the full view of his captor(s).
[30] Mr. Zang was also arrested for his alleged role in a home invasion in Scarborough that took place on January 8, 2020 involving some of the same team assembled for this kidnapping. He has not yet been convicted of anything in that regard. I am attributing precisely no weight for sentencing purposes to the circumstances of that alleged crime. As and when Mr. Zang is convicted for his alleged role in that offense, the sentencing judge in that case will decide what sentence is appropriate and whether that sentence ought to be consecutive or concurrent to the sentence I am imposing here. It must be clear that my decision here is in no way taking the circumstances of that charged offence into account.
(b) Mitigating
[31] The cases of R. v. Duncan, 2016 ONCA 754 and R. v. Downes, 2006 CanLII 3957 (ONCA) have long established that strict house arrest conditions or harsh conditions of pre-sentence detention should be considered as mitigating circumstances to be taken into account in sentencing above and beyond the s. 719 (3.1) Criminal Code statutory framework for crediting pre-sentence custody more generally. There is no precise formula that has been established as to how that mitigating circumstances need be accounted for. Some judges prefer to apply a mathematically precise formula resulting in a deduction from the sentence otherwise arrived at of so many days, weeks or months. I have seldom found the application of such a formula to be helpful as it suggests a degree of mathematical precision can be applied to one aspect of the balancing process required to determine a fit and proper sentence but not to others. The sentencing process in Canada is a tailored, individual exercise which does not apply fixed debits and credits to each of the myriad of factors and objectives the law requires to be taken into account in fashioning a fit and proper sentence. It cannot be reduced to an algebraic formula and the application of such a formula to one sentencing factor but not to others is as artificial as it is foreign to the balancing process the Criminal Code requires judges to undertake.
[32] There has been no suggestion made by the Crown that Mr. Zang should receive anything less than the “standard” credit of 1.5 days per day of actual pre-sentence custody. In the absence of any such suggestion and submissions on the point, the maximum credit provided for by s. 719(3.1) “if circumstances justify it” has become the default expectation in sentencing and I do not propose to depart from it here. There may be circumstances that do not justify the maximum credit, but none have ever been brought to my attention.
[33] Mr. Zang spent 44 days in custody before being released on bail on March 18, 2020 in the early days of Covid protocols and was re-incarcerated in October 2022 when the worst of the pandemic lockdowns and restrictions were behind us. These reasons will be delivered and Mr. Zang’s sentence will formally begin on March 6, 2024, with the result that Mr. Zang will have been in pre-sentence custody for a total of 540 days which at 1.5:1 amounts to 810 days as agreed to by the parties.
[34] The terms of Mr. Zang’s initial release were house arrest terms with a close friend as his surety. The terms of house arrest applied from March 19, 2020 until October 26, 2022 or over 2.5 years. His release ended when he was arrested due to unrelated charges in Oshawa.
[35] The rigour of those house arrest conditions upon someone presumed to be innocent must also be tempered by the fact that the community at large was operating under some degree of lock-down restrictions for significant periods of time as well and the restrictions and indeed Mr. Zang’s release at the time was undoubtedly due in no small measure to the Covid protocols being observed in freeing up detention centres as far as possible in that era.
[36] I can find nothing in Mr. Zang’s affidavit suggestive of an exceptional degree of hardship during this time frame beyond what can be more generally inferred from the circumstances. He was able to meet, form a relationship with and eventually move in with a woman during that time frame. The defence suggested that house arrest restricted Mr. Zang’s ability to work. That might be true in other cases but in the present case Mr. Zang had no lawful ability to work at any event given his lack of legal status. His affidavit indicates that he was able to do some “promotional work” online in China and was able to sell puppies from his house. Nevertheless, there can be no doubt that his freedom was restricted to a degree by comparison to those released without such conditions or those not arrested at all and for that time he was entitled to the benefit of the presumption of innocence.
[37] Overall I would attribute some mitigating weight to the factor of the conditions of his release but only a modest amount and certainly well below the requested credit of .5 days per day of application of house arrest conditions as suggested by the defence.
[38] For the period of time Mr. Zang was held in pre-trial detention, I was asked to have regard to the harshness of his conditions of detention arising from (i) periods of being “triple bunked”; and (ii) lockdown and especially consecutive lockdown days.
[39] Mr. Zang was “triple bunked” or placed in a cell beyond its intended capacity for 30 of the 49 days he was detained at Central East Correctional Centre. I have little in the way of hard information about how “triple bunking” impacted Mr. Zang’s detention beyond a general statement – which can readily be credited – that overcrowding exacerbates the negative impacts of lockdowns which were a fairly frequent occurrence there as well. However, only two of the seven lockdown days of six or more hours during Mr. Zang’s stay at CECC occurred while such conditions of overcrowding were in effect. Those two days must be considered to have been harsher than the other five but all seven lock-down days – out of a total of 49 days spent there – must be considered to have been somewhat harsher than normal detention conditions.
[40] The greater portion of Mr. Zang’s time in custody was spent at Toronto East Detention Centre. While he spent time in various units while there, he was in the protective custody unit for most of his time at TEDC. That unit experienced comparatively few full lockdowns (only two due to staffing and two due to a security issue). There were 38 instances of partial lockdowns, the vast majority of which were relatively short (3 hours) in duration. Mr. Zang’s affidavit states that he was “triple bunked” for 62 days of the 432 he has spent there. The TEDC records indicate that he was housed with two inmates 62 times but provides me with no data on the design capacity or size of the cell. I have no basis to equate that bare fact with an unusual or unacceptable degree of harshness. He was housed alone 20 nights and with a single other inmate on 350 nights. On average Mr. Zang’s unit had access to the yard 42.6% of the time compared to an average for the Centre of 31%. Yard access can be curtailed for reasonable reasons – inclement weather or security issues - or it can be curtailed due to less reasonable ones such as staffing shortages where these become chronic. I have no basis to assess this factor with more granularity.
[41] Overall, I would attribute some mitigation weight to the harshness of his detention conditions. His experience was better than some, worse than others. It is distressing to see so many of the lockdown periods in this and virtually all sentencing cases that come before us involving periods of pre-sentence custody that are attributable to staffing shortages. This is an obviously chronic condition that may not be subject to instant cure but surely must be curable within a reasonable time. Nevertheless, there are limits to how far a sentencing judge can go in assessing the relative degree of harshness of conditions against vague benchmarks of “normal” and in the face of very summary evidence.
[42] It is unclear to me what if any weight can be ascribed to the circumstance of Mr. Zang’s immigration status as a mitigating circumstance. On balance, I am persuaded that the weight is little to none.
[43] Mr. Zang had no legal right to remain in Canada before this crime was ever conceived of or carried into execution. Neither side disputed the assertion in the PSR that he has been subject to a removal order since 2017 although a copy of the order is not in evidence before me. He had no residency rights to lose regardless of the duration of his sentence. The defence raised the spectre of Mr. Zang being subjected to indefinite detention post-release by reason of his lack of status should China fail to cooperate in providing him with travel documents. That is entirely too speculative and evidence-free a line of reasoning for me to follow. I have no reason to presume that China would fail to co-operate in the return of its own citizen. The PSR suggests that China has already cooperated.
[44] I also cannot follow the Crown’s logic which would appear to ask me to treat his lack of status in Canada as an aggravating circumstance in all but name. It was suggested to me that the Minister will very likely descend upon the prison and deport Mr. Zang to China at his first early release date and that my sentence should account for that prospect and actively seek to forestall it. Once again, that appears to me to be a line of inquiry that is entirely too speculative and is otherwise quite outside of my jurisdiction. My task under the Criminal Code is to fashion a fit and proper sentence having regard to the objectives and criteria stipulated therein. How that sentence is administered in fact by the authorities charged with doing so and how the Minister of Immigration may choose to exercise his or her statutory duties in relation to a foreign national without residency status is another matter entirely and has no role in determining a fit and proper sentence given Mr. Zang’s pre-existing lack of any legal status in the first place.
[45] There is little else in the way of mitigating circumstances beyond Duncan and Downes that I can find any basis for in the sentencing record before me.
[46] Mr. Zang’s prospects for rehabilitation are, at the highest, a matter of conjecture. I cannot rule out his eventual rehabilitation but I see little in the way of evidence that he has changed or is in the process of doing so. His crimes are neither crimes of passion nor of immature or rash judgment. To the contrary, they were the object of lengthy and deliberate planning. His conscience has clearly governed his actions with but the lightest of touches for some time. There is nothing to suggest that he has had a moral epiphany since his arrest. The existence of what is described to me as a stable post-arrest romantic relationship in a country that he has not the slightest legal right to remain in does not materially alter the picture.
[47] There is simply no basis for me to infer that Mr. Zang has used the time since his arrest to acquire any degree of insight into his offences, what led him to commit them or the grievous harm he so callously inflicted on people who had done nothing to him and whom he did not know. He has, it is true, used his time in the detention centre to attend a great variety of programs for which he presented me with attendance certificates. There is nothing in those programs – many of which have little bearing upon the circumstances of his delinquency – to instill in me any confidence in his rehabilitation prospects. The pre-sentence report paints the portrait of a man who minimizes his role in the whole affair, rationalizes his choice of victim and downplays his role as mastermind of the scheme.
[48] I cannot describe Mr. Zang’s criminality as being substantially due to the unfortunate impact of an exceedingly difficult or underprivileged life. However strict, overbearing or insensitive may be the description he gave of his parents to the author of the pre-sentence report, his parents provided him with the means to gain a university degree in China and then paid for him to pursue his education in Canada until his relationship with them deteriorated. Mr. Zang chose crime as a means to an end; he was not driven into it by anything more noble than greed, envy and desire.
[49] In summary, I find that the only material mitigating circumstances present in this case are related to the conditions of his pre-trial release (i.e. house arrest) and the comparative harshness of the conditions of his pre-trial detention. I am satisfied that, even adjusting for the pandemic conditions that played some role in the condition of our pre-trial detention centres, Mr. Zang’s conditions of release and detention reflect a degree of harshness that must be recognized in any sentence I impose. Such mitigating circumstances must be assessed separate and apart from the statutory credit under s. 719(3.1) of the Criminal Code for pre-sentence custody.
Position of the Parties
[50] The Crown seeks a global sentence of 25 years of which 20 years for the charge of kidnapping and 5 years consecutive for the charge of overcoming resistance. In addition, the Crown asks me to exercise my discretion to restrict Mr. Zang’s eligibility for parole under s. 743.6 of the Criminal Code until he has served one-half of his sentence.
[51] The defence position is that Mr. Zang should receive a global sentence of 12 years of which 12 years is submitted to be the appropriate charge for kidnapping and 2 years concurrent for overcoming resistance.
Application of Sentencing Principles
[52] I shall not recite at length in these reasons the excellent overview of the push and pull process of crafting a fit and proper sentence in the individual circumstances of the offender that have been so concisely summarized by the Court of Appeal in R. v. Morris, 2021 ONCA 680 at paras. 57-60. My task is to prioritize and blend the various objectives of sentencing set forth in s. 718 and following of the Criminal Code and to determine “a just sanction which reflects a proper blending of the objectives of sentencing guided by the lodestar of proportionality” (at para. 59).
[53] The “lodestar of proportionality” is a particularly important concept to place near the beginning of my analysis of the application of sentencing principles here given the length of the sentence I am being asked to consider, the consecutive sentence for overcoming resistance that I am being asked to impose and the request for me to exercise my discretion to restrict eligibility for parole under s. 743.6 of the Criminal Code.
[54] There can be no serious question that denunciation and deterrence are the two paramount sentencing objectives in this case. Kidnapping of a stranger from his home to be held for ransom has always been treated as one of the most serious of crimes. It is the sort of crime that corrodes our collective sense of safety and security in a civil society in such a fundamental way particularly where, as here, a nocturnal invasion of the home is involved. The prescribed penalty in the Criminal Code is up to life in prison which reflects the particularly serious nature of this crime and there is considerable jurisprudence supporting sentences at or near the maximum end of the range in circumstances quite analogous to those present here.
(i) Sentences for kidnapping and overcoming resistance
[55] The circumstances of this kidnapping objectively place it at or near the very highest end of the range of relative gravity for purposes of sentencing. There are no material mitigating circumstances that pre-date the planning or execution of the crime[^1]. The crime was meticulously planned and the offender before me was the planner in chief. The motive was money, pure and simple. Whereas many kidnapping cases involving ransom demands have at least a semblance of debt collection about them, there is no such pretext to be pointed to here – the ransom demand was extortion in its simplest and most brutal form. The victim was held in highly stressful and degrading circumstances for a lengthy period of time – far longer than most of the precedents pointed to by both sides.
[56] There is but one “mitigating” factor which tends to bring this crime a peg or two down from the very top of the severity ladder of extremely serious crimes. The victim, while subjected to degrading terms of captivity and excruciating psychological pain, was not beaten or tortured physically. That is not to minimize in any way the very real impact of the pain inflicted but the aggravating circumstance of extreme brutality and violence being displayed is not present in this case although present in some others.
[57] The jurisprudence describes a fairly broad swath of cases at the high end of the range with cases such as R. v. Sookram, 1982 ABCA 364 where the Alberta Court of Appeal described (at para. 16) a range of 10-20 years for cases of kidnapping for ransom or R. v. Mills, 1998 CanLII 15020 (BC CA) where a range of 10 years to life was described as applicable to the “classic” case of kidnapping for ransom which “usually involves a carefully planned scheme for ransom with a period of confinement much longer than several hours and where the victim is bound, gagged, and sometimes blindfolded” (at para. 17) by contrast to the case before that court of a short duration kidnapping designed to extort payment of an alleged debt where a shorter sentence range of 4-6 years was found to be more appropriate for a crime more closely resembling robbery or extortion with a short period of confinement.
[58] The case of R. v. Mulvahill, 1993 CanLII 965 (BC CA) is one where the mastermind of a kidnapping had an initial life sentence reduced to 18 years on appeal in recognition of the potential for rehabilitation of the youthful offender with a prior record of violence. The kidnapping was of a short duration (2 days) of a victim who was bound and gagged.
[59] In R. v. Metropolit, 2002 CanLII 19782 (ON CA)[^2] a global sentence of 18 years with parole ineligibility was upheld in the case of a 22-year-old offender involved in a 11 ½ hour kidnapping where the victims’ vehicle was rear-ended, they were beaten, transported in their own car (one confined to the trunk) and then held in an apartment where they were beaten and threatened until they surrendered security codes and passwords following which their home was robbed. The kidnapping ended fortuitously due to the victims having escaped. This case involved “career criminals” and also resulted in a concurrent sentence for the administration of a noxious substance (mace) to overpower of five years[^3]. The youthful offenders were found to have some rehabilitation prospects and had pled guilty.
[60] In R. v. Li, 2002 CanLII 18077 (ON CA) three offenders appealed life sentences handed down after trial. The Court of Appeal upheld the trial judge’s rejection of the defence of duress but concluded that this was not the most severe of cases and that a 14 year sentence followed by immediate deportation was a more appropriate sentence for offenders without any known criminal past and who had been ordered to undertake the kidnapping of the victims to repay a debt owed to the criminal organization from China that had organized their smuggling into Canada and to enable that criminal organization to extort a ransom from the family of the victims in China. The “mastermind” of the kidnapping in that case was the criminal organization in China.
[61] The defence agreed with the general proposition that a range of 10-20 years is appropriate in kidnapping cases but advocated for a sentence at the lower end of the range (12 years). I shall not review each cited case but would note that generally the cases cited involve individuals who played a supporting role rather than a “ringleader” role (eg. R. v. Wong & Poon, 2008 BCCA 64) and/or had other significant mitigating circumstances in their favour (youth, guilty pleas and rehabilitation prospects in many cases). Another distinguishing feature that is frequently present is motive – in many cases where a milder sentence was handed down, the kidnappers were seeking revenge upon the victim or payment of a debt – whether real, imagined or illicit.
[62] There is unanimous agreement that denunciation and deterrence, both general and specific are the primary sentencing goals. Where the crime involved such a high degree of planning and sophistication as this one did, it seems to me that an exemplary sentence at or near the very highest end of the scale is necessary to discourage others from following such a vicious and destructive path.
[63] In my view, the jurisprudence amply supports the proposition that a sentence range of 18 years to life is appropriate for the mastermind of a carefully planned kidnapping for ransom of this sort. The presence of extreme brutality and physical violence – while obviously an aggravating factor - is not a condition precedent to a case being considered at the top end of the range since the threat of violence up to and including death is an express or implicit constant in all of these cases. Mitigating factors such as youth, a guilty plea or rehabilitation prospects are absent or are muted in the present case.
[64] In all of the circumstances, I find that a sentence of 20 years for kidnapping strikes an appropriate balance of the applicable sentencing principles. Denunciation and deterrence are entitled to paramount but not exclusive weight. The gravity of this offence, the high degree of moral culpability of the offender including his role as mastermind and architect of the entire plan require an exemplary sentence to deter others who might be inspired to follow in Mr. Zang’s footsteps. The lack of extremes of violence and the mitigating circumstances described earlier warrant some stepping back from the top of the range but not so far as to blunt the necessarily exemplary nature of the sentence being imposed.
[65] The Crown asked for a consecutive sentence of five years to be imposed for overcoming resistance. In my view, the Crown’s logic is compelling but the result in this case would be a global sentence that extends beyond what I feel the totality principle would permit.
[66] There is no evidence as to what substances Mr. Jin was compelled to ingest to overcome his resistance to the kidnapping. None of the parties who administered the substances or who ordered the substances to be administered have come forward to testify or provide the information. Mr. Jin was held in captivity for such a lengthy period of time that it was no longer possible to determine the substance by testing. It has been established that the substance was intended to overcome resistance and ultimately had the effect of putting Mr. Jin into a sleep deep enough that he thought he was in Montreal when he came to at the Richmond Hill house to which he was transported. It can be said with certainty that multiple doses of an unknown soporific substance were administered by persons (Mr. Matthews and Mr. Myers) acting on Mr. Zang’s instructions who had no idea what a safe dose was or the degree of risk of harm to the victim that was being inflicted on him by them.
[67] Tens of thousands of Canadians die every year from the effect of an overdose of narcotics. A significant cause of those deaths is the thin margin between safe and fatal doses with many prevalent street drugs such as fentanyl and the wide-spread practice of cutting one drug with another. This already present danger is aggravated by street drugs being dosed and mixed by amateurs and trafficked to end-users with no knowledge of the precise mix of substances they contain or the risks entailed.
[68] The risk of death inflicted upon Mr. Jin in this case was neither far-fetched nor speculative. Mr. Zang may as well have played Russian Roulette with Mr. Jin and his sentence must reflect that reckless imposition of risk to his life and health.
[69] The logic for a separate and severe sentence to reflect that independent, callously inflicted risk is a compelling one and every bit as compelling as the consecutive sentences imposed for using a firearm in the robbery of the kidnap victims imposed by Locke J. in J.D. which was upheld by the Court of Appeal in Metropolit.
[70] There is not a lot of guidance in the jurisprudence as to the appropriate range for this offence. The mace employed in J. D. received a five-year concurrent sentence. Mace is less likely to be lethal than unknown street drugs in all likelihood but was certainly far more painful to the victim. I find that a sentence of three years for this offence strikes a reasonable balance of the appropriate sentencing principles.
[71] The defence strongly resisted the idea that a consecutive sentence ought to be imposed in this case. I agree. In my view, the totality principle weighs heavily against adopting the Crown’s position and support’s the position of the defence.
[72] The kidnapping sentence imposed – 20 years – is clearly approaching the high end of the appropriate range for analogous cases. There are some that have gone beyond that and more than few that have gone below. A consecutive sentence on top of a high end of the range sentence would, in my view, put this case in a class all its own when viewed globally and in light of the mitigating circumstances.
[73] I find that a consecutive sentence would violate the totality principle and I decline to make such an order. A concurrently served sentence of three years for Count 2 shall be imposed.
(ii) Parole ineligibility
[74] The Crown asks for an order that Mr. Zang be ineligible for parole until he has served half of his sentence pursuant to s. 743.6 of the Criminal Code. The statutory requirements to the exercise of this discretion are clearly present in this case. The crimes for which Mr. Zang has been convicted are among the listed offences and Mr. Zang’s sentence is greater than two years in length otherwise than as a minimum punishment. Section 743.6(4) provides that the paramount principles to guide the court in exercising its discretion are denunciation, specific or general deterrence with rehabilitation being a subordinate consideration to the listed paramount principles. The leading case on the application of this rule is that of R. v. Goulet, 1995 CanLII 1198 (ON CA), 22 O.R. (3d) 118 (C.A.) where it was held that the remedy “can only be justified as an exceptional measure reserved for particular circumstances requiring an additional form of denunciation, deterrence or incapacitation”.
[75] In Metropolit, the court upheld the decision of Locke J. (reported as R. v. L.D., [2000] O.J. No. 739) in imposing such a restriction in sentencing two youthful offenders who had pled guilty to a particularly brutal kidnapping. In his reasons, Locke J. noted that the Court of Appeal in the earlier case of R. v. Davis 1999 CanLII 3683 (ON CA), [1999] O.J. No. 141 had overturned a decision of his imposing this additional sanction because the reasons for applying it “must extend beyond those which led to the imposition of the sentence in the first place”.
[76] This case is indeed a severe case. The sentence being handed down already reflects the severity of the matter, accounting for the circumstances of the offences, their gravity, the high degree of moral responsibility of the offender, the circumstances of this offender and the relative lack of mitigating circumstances. The Crown has been hard pressed to delineate for me what circumstances are present here which extend beyond those that led to the imposition of a sentence so near the high end of the range in the first place. I am not persuaded that the prospect of the Minister exercising discretion to seek the early release and deportation of Mr. Zang is such a circumstance. My jurisdiction as sentencing judge does not extend to forecasting future actions of the executive branch of government and seeking to curtail those that I might disagree with. The manner in which a sentence may in future be administered by the authorities designated by Parliament to administer them is not a factor for me to account for in my sentence.
[77] Locke J. was faced with a kidnapping of rather exceptional ferocity and brutality in L.D. – something which is not present here. This is an observation I make without in any way diminishing the gravity of the offence or the lasting harm inflicted upon its victim. I cannot find that a sufficient strong case for the application of s. 743.6 of the Criminal Code has been made out on the facts before me. In my view the sentence being imposed represents a fair and reasonable balance of the sentencing principles without recourse to the additional sanction of s 743.6.
Disposition
[78] For the foregoing reasons, I sentence Mr. Zang as follows:
a. For kidnapping (Count 1, s. 279): 20 years
b. For overcoming resistance (Count 2, s. 246(b)): 3 years concurrent.
[79] The forgoing sentence is inclusive of a consideration of all mitigating circumstances associated with release conditions and harsh detention conditions.
[80] The following ancillary orders shall be made:
a. Credit for pre-sentence custody (s. 719 (3.1)): 540 actual days at 1.5:1 for a total of 810 days;
b. A lifetime s. 109 firearms prohibition; and
c. A DNA order.
[81] Orders shall be issued today in accordance with these reasons.
S.F. Dunphy J.
Date: March 6, 2024
[^1]: By this I mean no more than that the only material mitigating circumstances relate to the circumstances of his detention or release after his arrest which themselves do not impact an assessment of the responsibility of the offender or the gravity of the crime. The ultimate sentence must and shall reflect the mitigating circumstances that I have found to be present.
[^2]: This case was an appeal of the decision of Locke J. in R. v. J.D. , [2000] O.J. No. 739.
[^3]: One of the two offenders received two consecutive one year terms for use of a firearm in robbing each of the two victims accounting for the difference in their global sentences.