Court File and Parties

Court File Nos.: CR-23-10000574-0000 Date: 2024-03-12 Ontario Superior Court of Justice

Between: His Majesty The King

• and - Martin Levy, Jevaughn Myers, Jermaine Watson and Zeyu Zang

Counsel: Erin Pancer, Colin Sheppard and Christopher Assie, for the Crown Ryan Handlarski, for Mr. Myers

Heard: September 15, December 1, 2023; January 12, February 8 and 27, 2024

Before: M. Forestell J.

Reasons for Sentence of Jevaughn Myers

Overview and the Positions of the Parties

[1] Jevaughn Myers entered a guilty plea on September 15, 2023, to one count of kidnapping and one count of administering a stupefying drug to overcome resistance. Mr. Myers’ sentencing proceeded on December 1, 2023; and February 8 and 27, 2024. I reserved my decision on sentencing until today.

[2] The charges arise out of the kidnapping of Wenbo Jin on January 21, 2020. Mr. Jin, an international student studying at the University of Toronto, was kidnapped and held for 13 days while his kidnappers attempted to obtain ransom money from Mr. Jin’s parents.

[3] The Crown seeks a sentence of 18 years’ imprisonment for the kidnapping and 3 years consecutive for administering a substance to overcome resistance. However, recognizing the principle of totality, the Crown concedes that a sentence of 21 years would be unduly long and harsh and should be reduced to 16 years.

[4] Counsel for Mr. Myers submits that a total sentence of 8 years’ imprisonment is appropriate before credit for presentence custody.

Circumstances of the Offences

[5] The circumstances of the offences before me are set out in detail in the Agreed Statement of Fact entered as Exhibit 1 on the sentencing hearing.

[6] Mr. Myers was hired by Jermaine Watson to break into the condominium unit of Mr. Jin, an international student studying at the University of Toronto. Mr. Myers, Mr. Matthews, Mr. Watson and Mr. Zang developed a plan to kidnap Mr. Jin and hold him for ransom.

[7] On January 21, 2020, Mr. Myers was driven to an area near the condominium building where the victim lived. Mr. Myers and Mr. Matthews were driven to the building where a third man let them into the building by the back entrance. They brought a large hockey bag with them into the building. They gained entry to the victim’s unit with a key that had been provided to them. They were both masked at this point. They entered the victim’s bedroom and Mr. Matthews pointed a replica firearm at the victim. They taped the victim’s mouth, blindfolded him and zip tied his hands and feet. They then removed the tape and force fed the victim a sedative. The sedative did not render the victim unconscious. They gave the victim three or four more doses of the sedative. The victim still did not fall asleep.

[8] After discussion via walkie talkie with Mr. Zang, Mr. Myers brought a dolly up to the apartment. Mr. Myers and Mr. Matthews loaded Mr. Jin into the hockey bag and took him to the van. They warned him not to make any noise. They loaded Mr. Jin into the waiting van and took him to a house north of the city.

[9] Mr. Jin was placed in a bedroom on the second floor of the house. He was chained and blindfolded; the door was locked and there was wood over all of the windows. There was a camera outside the door so that his captors could watch the room. Mr. Myers stayed at the residence and took shifts watching Mr. Jin. Mr. Myers socialized with Martin Levy and Stephanie Wiseman who were also staying at the residence. On January 29th, Mr. Myers arranged for a female friend to visit at the house. She remained until January 31st. They also had pizza delivered.

[10] On February 2, 2020, the police entered the house to rescue Mr. Jin. Mr. Myers jumped from a second-floor window to evade the police.

[11] Mr. Myers was paid cash for his role in the offence. He was aware that a ransom demand had been made of Mr. Jin’s father in China. He knew that the plan was to hold Mr. Jin until the ransom was paid.

Victim Impact

[12] The victim, Mr. Jin, has provided a Victim Impact Statement. Mr. Jin was understandably terrified by his ordeal. He was held in inhumane conditions. He continues to suffer from the trauma of his captivity. The health of his parents was also impacted by these offences. Mr. Jin’s university education was interrupted and delayed by the offence.

Circumstances of the Offender

[13] Mr. Myers is a 25-year-old first offender. He has completed high school. He has worked for short periods of time in various jobs. He has worked in recent months as a landscaper. Mr. Myers has always lived with one of his parents. He currently lives with his mother and stepfather. His family remains supportive of him.

[14] I have the benefit of a psychological report by Dr. Stephanie Penney.

[15] Dr. Penney diagnosed Mr. Myers as currently experiencing a major depressive disorder and she also diagnosed cannabis use disorder.

[16] Dr. Penney conducted risk assessments. She concluded that Mr. Myers poses a low risk to reoffend violently.

Legal Principles and Analysis

[17] The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, is to “contribute …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; (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; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community”.

[18] In my reasons for sentence with respect to Mr. Matthews, a co-accused in this case, I set out the relevant caselaw and principles with respect to the offences of kidnapping and administering a substance to overcome resistance. Those general principles at paragraphs 20 to 30 of my reasons for sentence in R. v. Matthews, apply equally to Mr. Myers in light of his role in the offences and I repeat them here:

20 In sentencing for kidnapping, denunciation, deterrence and the protection of the public must be the primary objectives.

21 As the British Columbia Court of Appeal explained in R. v. Poon, 2008 BCCA 64, at para. 27:

...kidnapping strikes at the heart of the community's sense of safety and security. It is an offence that is intended to incite fear and terror in not only the person kidnapped, but also his or her family and friends, many times using that fear to extort money in return for that person's safe return. Even when the victim is released without having sustained any permanent physical injuries, the psychological and emotional scars may be slow to heal, if they ever do.

22 There is a wide range of sentence for kidnapping, ranging from 6 years to life imprisonment. Sentences in the 6 to 10-year range are considered to be at the low end of the range and are reserved for cases that do not have aggravating features like gratuitous violence and for offenders who played a lesser role. Sentences in the mid-range of 10 to 14 years have been imposed for serious kidnapping cases involving ransom. R. v. Marozoff, 2010 BCCA 546 Even youthful first offenders have received sentences in this range. R. v. Hernandez, 2009 BCSC 474; R. v. Wong and Poon, 2008 BCCA 64 A minimal role in the offence and mitigating personal circumstances may, exceptionally, bring the sentence below the 6 to 10-year range. R. v. Brar, 2014 BCCA 175, [2014] B.C.J. No. 881 (BCCA); R. v. McKinnon, 2015 BCSC 1116; R. v. Hazout; R. v. Baksh

23 Generally, the cases in which sentences at the higher end of the range have been imposed – 16 years to life imprisonment – have involved offenders who participated in the planning of the kidnapping and who have criminal records and circumstances that include assaulting and threatening the victims R. v. L.D., affirming [2000] O.J. No. 739 (S.C.J); R. v. Mulvahill; R. v. Mulvahill, 2003 BCCA 670.

24 In R. v. Brar, 2014 BCCA 175, the British Columbia Court of Appeal identified criteria that are indicative of the gravity of the offence of kidnapping. These are:

(b) The purpose of the kidnapping, specifically whether it is carried out for ransom or as a means of extorting a payment or repayment from the victim; (c) The extent to which there is planning and premeditation; (d) The length and conditions of the confinement; (e) The extent to which there is violence, torture or significant physical injuries; (f) Whether third parties are threatened; (g) Whether guns are used; (h) Whether there is gang involvement; (i) Whether the kidnapping occurs in the course of the commission of another offence; and (j) The circumstances in which the kidnapping ends.

25 This was a kidnapping for ransom; it involved a home invasion; there was significant planning and premeditation; replica guns were used; the conditions of the confinement were inhumane and prolonged, and the kidnapping ended only with the rescue by law enforcement.

26 In R. v. Hernandez, 2009 BCSC 474, the circumstances of the kidnapping were similar to the circumstances before me. The victim was taken from his vehicle and held for eight days. The offenders used what appeared to be real guns. The victim was tied for at least some of the time with zip ties and his eyes were covered by duct tape. The police rescued him after the eight days of captivity.

27 Two of the offenders in Hernandez were 20 and 21 years old at the time of the kidnapping. Neither had a criminal record. The sentencing judge found that he could not conclude that Mr. Hernandez was involved in the planning of the kidnapping. He found that Mr. Nguyen was involved in the planning. Mr. Hernandez was sentenced to 12 years imprisonment and Mr. Nguyen to 13 years. Mr. Nguyen appealed his sentence and the sentence was upheld by the Court of Appeal.

28 The British Columbia Court of Appeal, in upholding Mr. Nguyen’s sentence, identified general deterrence as a primary objective of sentencing in cases involving a high degree of planning and premeditation. R. v. Nguyen, 2009 BCCA 546, at paras. 26 and 27. Similarly, in R. v. Raber, 1983 ABCA 325, the Alberta Court of Appeal observed kidnapping for ransom must attract a deterrent sentence. The Court explained that, “[T]hose who commit crimes of this sort do so after some planning and deliberation. This deliberation, we are persuaded, includes an assessment of the chance of evading capture and also an assessment of the penalty which the criminal will suffer if caught.”

29 The offence of administering a substance to overcome resistance is also a serious offence. It has a maximum sentence of life imprisonment. In R. v. Beszedes, 2013 BCSC 2500, the offender pleaded guilty to twice administering a drug to facilitate robberies and once to facilitate a sexual assault. He was sentenced to consecutive terms of three years each.

30 As Williams J. observed in Beszedes, supra, at para 82: “The administration of those drugs is insidious in that it renders an individual helpless and powerless. That person has no control over what occurred; it is a state of absolute vulnerability.”

[19] Aggravating factors with respect to Mr. Myers are the impact on the victim and Mr. Myers’ role in each stage of the offence from the invasion of the home of the victim to the guarding of the victim while he was held captive. Mitigating factors in Mr. Myers’ case are: Mr. Myers’ guilty plea and remorse; the fact that he is a first offender; his mental health diagnoses; and his family support. Mr. Myers has accepted responsibility and has expressed remorse through his guilty pleas.

[20] Mr. Myers was in custody for 46 days when he was first arrested. The conditions were extremely harsh as his incarceration occurred during the COVID-19 pandemic. He was then on house arrest bail with GPS monitoring for 521 days. Following a breach, he was in custody for a further 33 days and then he was released on a house arrest bail with GPS for a further 266 days. At that point his house arrest was changed to a curfew. He has been subject to a curfew for 637 days.

[21] Mr. Myers’ circumstances and his role in these offences would generally place him place him at the mid-range of 10-14 years identified in the caselaw. He was part of the planning of the kidnapping in this case and he played a central role in the execution of the plan.

[22] However, Mr. Myers is a youthful first offender and he has mental health issues. The principle of restraint is applicable in this case. Mr. Myers has expressed remorse and he has taken responsibility for his actions. He has strong family support. I have also considered the harsh conditions of custody and Mr. Myers’ lengthy period of time on house arrest. In all of the circumstances, I would impose a sentence of 9 years for the kidnapping.

[23] In the circumstances of this case, I find that a one-year sentence should be imposed for administering a substance.

[24] In accordance with the approach set out in R. v. Marchand, 2023 SCC 26, having made a determination of the appropriate sentence for each offence, I have considered whether the sentences should be concurrent or consecutive. Although the offences arose out of the same criminal transaction, they constituted invasions of different legally protected interests. In the circumstances the sentences should be consecutive. The administration of the drugs was a separate invasion of the bodily integrity of the victim.

[25] Having determined the aggregate sentence of 10 years, I must apply the principle of totality and assess whether the total sentence is “unduly harsh and long, in the sense that it is disproportionate to the gravity of the offence or the degree of responsibility of the offender.” Marchand, at para. 99.

[26] I conclude that a sentence of 10 years is not unduly harsh and long in light of the gravity of these offences and the moral blameworthiness of Mr. Myers.

[27] I therefore impose a global sentence of 10 years before credit for actual presentence custody of 79 days credited at 1.5 to 1 as 119 days. 10 years is 3652 days. This leaves 3,533 days to serve or 9 years and 8 months and 2 days.

[28] I also make a s.109 weapons prohibition for life and a DNA order as kidnapping is a primary designated offence.

Released: March 12, 2024 M. Forestell J.