Court File and Parties

Court File No.: CR-23-10000596 Date: 20241211 Superior Court of Justice – Ontario

Re: His Majesty the King And: Jermaine Watson, Defendant

Before: S.F. Dunphy J.

Counsel: Erin Pancer, for the Crown James Miglin for the Defendant

Heard at Toronto: December 04, 2024

Reasons for Decision - Sentencing

[1] Mr. Watson was before me on December 4, 2024 for sentencing following his conviction by a jury on October 21, 2023 on charges of kidnapping (Criminal Code, s. 279). The sentencing hearing for Mr. Watson has been considerably delayed, initially for health reasons and most recently due to Mr. Watson’s decision to change counsel.

[2] I delivered Mr. Watson’s sentence following a hearing on December 4, 2024. I sentenced Mr. Watson to 15 years less net pre-sentence credit of four years and 46 days with more detailed reasons to follow. These are those reasons.

Circumstances of the offence

[3] I reviewed the circumstances of this offence and the impact of this crime upon its victims in detail in my reasons for sentencing of Mr. Watson’s co-accused Mr. Zeyu Zang released on March 6, 2024. The evidentiary foundation of those reasons was the jury verdict, the trial evidence and the victim impact statement all of which are part of the evidentiary record here and I adopt those sections of my detailed reasons here without repeating them at length. Findings of fact regarding the circumstances of the offence and aggravating circumstances are all made on a beyond reasonable doubt standard of proof.

[4] In a very summary way, after several weeks of detailed planning, Mr. Wenbo Jin was kidnapped from his downtown Toronto condominium apartment by two intruders in the early morning hours of January 21, 2020. After being blindfolded and bound, Mr. Jin was held for several hours in his apartment while attempts were made to drug him so that he might be carried unconscious to the van waiting to transport him. When he failed to lose consciousness, Mr. Jin was conveyed by his captors to the waiting van bundled into a hockey bag under dire threats and eventually transported in the back of the van to the house in Richmond Hill that had been rented and prepared in advance to receive him. The house had boarded windows and a surveillance camera to keep watch over the door to his room. It had also been provided with a large bucket to serve as a toilet and chains and blindfolds to secure him. There he was held in degrading and inhumane conditions, blindfolded and shackled, with an ever-present team of watchers while ransom demands were conveyed. This state of affairs persisted until the afternoon of February 2, 2020 when he was rescued by Toronto Police Services. The ransom demand made upon his father was to have been paid in Bitcoin with a value at that time of approximately $5 million.

[5] While Mr. Zang was the mastermind, Mr. Watson was unquestionably his principal lieutenant. Mr. Watson was recruited by Mr. Zang in the planning phase of this crime more than a month prior to the kidnapping and it was he who Mr. Zang relied upon to identify, recruit and supervise the team that would kidnap Mr. Jin, transport him to the prepared house in Richmond Hill and then hold him in captivity until the ransom was paid. While a junior partner in the enterprise, Mr. Watson was clearly acting in a supervisory role throughout. He negotiated with Mr. Zang for himself and his “team” and remained in a close-support role while the abduction was being effected.

[6] Mr. Watson’s role included an initial December planning meeting with Mr. Zang, recruiting the kidnap team and setting up a temporary headquarters in a Scarborough townhouse rented by Mr. Zang for the purpose. The Scarborough townhouse was used for planning sessions attended by Mr. Watson and others on the team and as a staging location for a first unsuccessful kidnap attempt and then the successful attempt the following day. Mr. Watson was present on site in a stake-out location during the actual kidnapping which lasted for several hours while the “inside” team waited for the stupefying drugs to take hold.

[7] Mr. Watson’s motive was money. There can be no question that he knew all material details of the plan which he participated in developing, remaining close by the scene while Mr. Jin was being kidnapped, drugged and transported to the waiting van and was in communication with Mr. Zang throughout. His participation in the on-going enterprise was cut short only by his apprehension by police on unrelated (to the kidnapping) charges along with another accomplice in the kidnapping scheme several days prior to Mr. Jin’s liberation. His was a central planning and supervisory role in a sophisticated, meticulously planned criminal operation. There is no direct evidence that Mr. Watson played any role in selecting or administering the stupefying agent to Mr. Jin - an offence with which he is not charged although two other members of the group (Mr. Matthews and Mr. Zang) were. This last feature of the kidnapping is not an aggravating feature of the crime that can be attributed to Mr. Watson.

Circumstances of the Offender

[8] Mr. Watson is 41 years of age at the present time and was 36 years of age when the offence was committed. He was raised in Toronto. His parents separated when he was five years old. He was the only child of that relationship and was raised primarily by his mother with whom he had a very difficult relationship while living with her and has maintained no contact with her as an adult. His father passed away approximately 20 years ago. All of these issues have undoubtedly contributed to challenges in his youth. He attended several schools before finally leaving school after Grade 10 and, as shall be discussed further below, his criminal involvement began in youth court in his late teens.

[9] Mr. Watson has a number of half-siblings from both his mother’s and father’s side respectively (six paternal half-siblings and four maternal half-siblings). It does not appear that he is close to any of his half-siblings, a fact that the pre-sentence report attributes in substantial part to their frustration at his criminal involvements over the years. He is unmarried. According to the pre-sentence report, he has four children from prior relationships. There is some conflict between the enhanced pre-sentence report prepared for the defence and the pre-sentence report ordered by me as regards the degree of relationship Mr. Watson has maintained with his children. There seems little doubt that he has little to no relationship with two or possibly three of them, but the enhanced pre-sentence report found evidence of a fairly close relationship – albeit long distance – with one of them. There are indications in the pre-sentence report of anger management issues impacting his sometimes-violent relationships with prior domestic partners.

[10] There can be little doubt that the challenging circumstances of Mr. Watson’s youth played a role in Mr. Watson’s ultimate life choices, an observation that does not suggest inevitability or a lack of agency in any way. Mr. Watson’s siblings were similarly situate – not identically situate – to him. There were various points of distinction between them – age, different father or mother, etc. - but the fact that he alone among his siblings slid into a life dedicated to crime to the degree his life has been suggests that the environmental influences on his formation were important but far from determinative.

[11] Since leaving high school, Mr. Watson has worked doing home renovations after leaving school until a few years ago. More recently he has been self-employed in various capacities such as buying and selling liquidation goods, operating a party-rental business and an events planning business in addition to sporadic work in the music business.

[12] Mr. Watson is facing very severe health challenges. He is currently wheelchair dependent for the most part. He was diagnosed with Multiple Sclerosis in 2016 and with Myasthenia Gravis in 2021. From the materials before me, both of these conditions wax and wane in their symptoms and their intensity. These shall exert an influence on his quality of life to a greater or lesser degree but for the rest of his life. Over the time he has been before me for trial and then sentencing, there has been a visible degree of decline. It seems very likely that he will need a considerable amount of medical attention while in custody for any sentence that may be handed down. Indeed, a portion of the delay in sentencing can be attributed to Mr. Watson seeking treatment for his condition following a significant flare-up in late 2023.

[13] Mr. Watson also has a very lengthy criminal record which begins in his teen years and continues quite unabated and with few material breaks to the present time. There do not appear to be any years from 2000 to the present time where Mr. Watson has not spent 30 or more days in custody and/or been on probation. The longest sentence prior to this incident was five years for armed robbery and possession of a prohibited or restricted firearm with ammunition. The most common entries on his record are for assault and failure to comply with probation orders.

[14] Mr. Watson attributes at least some of the attention he drew from police in his early years to racial profiling by police due to the relatively high crime in the Rexdale neighborhood he then lived in, his black skin colour and the fact that he looked relatively mature for his age. He reported that his experience with police has left him fearful of them.

[15] In the immediate time-frame of the planning and kidnapping of Mr. Jin (December 2019 - January 2020), Mr. Watson appears to have stepped up his criminal activities in terms of seriousness and violence. Mr. Watson was found guilty and is awaiting sentencing (in January 2025) for two brutal home invasions – one in Oakville in early November, 2019 and one in Scarborough in January 2020 just over a week prior to the abduction of Mr. Jin. Mr. Matthews, one of the team convicted for his role in the kidnapping of Mr. Jin participated in both home invasions with Mr. Watson and pled guilty to his role in this kidnapping and those two home invasions (receiving an aggregate sentence of fifteen years for the kidnapping and five years for the two home invasions). Both home invasions involved victims being terrorized in their own homes and bound with duct tape and zip ties (as was the case with Mr. Jin in the present case).

Aggravating and Mitigating Circumstances

(a) Aggravating

[16] 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 in my reasons for sentence of Mr. Zang and will not repeat that description here; b. The fact that the victim’s 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 and over a period of more than a month – 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. Watson as a senior lieutenant to Mr. Zang, himself the organizer, architect and directing mind of the operation as described above and Mr. Watson’s certain knowledge of and indifference to the degree of pain, anxiety and suffering inflicted upon the victim and his family; e. The motive underlying Mr. Watson’s participation in this crime which very clearly was nothing but greed; f. 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 Mr. Watson’s role in the planning of the operation including these features of it.

(b) Mitigating

[17] There is little in the way of mitigating circumstances disclosed in the sentencing record. Mr. Watson has expressed no remorse for his role in this crime beyond expressing to the author of the pre-sentence report a degree of fatalism and self-pity at the probable consequences of his crime. The view he expressed that his own role in the kidnapping was “minimal” shows no indication that Mr. Watson has acquired any degree of insight into the gravity of this crime and his responsibility for it and suggests little hope that he will undergo any metamorphosis in the foreseeable future.

[18] It is fair to observe that Mr. Watson’s deteriorating health has resulted in the impact of detention falling somewhat more harshly upon his shoulders when compared to a detainee not so impaired. While not strictly speaking a mitigating circumstance since unrelated either to the gravity of the offence or Mr. Watson’s degree of responsibility for it, Mr. Watson’s deteriorating health unquestionably amounts to a collateral consequence of his incarceration that will fall more heavily on his shoulders than might be the case for another similarly situated offender not so handicapped. While pre-sentence hardship can be broadly viewed and taken into account as a mitigating factor on the authority of R. v. Duncan, 2016 ONCA 754, post-sentence hardship of this sort must logically be characterized as a personal circumstance that may impact the assessment of proportionality and parity where there is a material difference in the impact of incarceration on an offender compared to others. I see little practical difference between these two ways of viewing the impact of pre vs post sentencing conditions. The mitigating impact of this consideration must be balanced and cannot override other sentencing objectives and its application requires evidence that extends beyond mere speculation.

[19] The defence filed letters from treating physicians at St. Michael’s hospital as well as Mr. Watson’s family doctor at Central Clinics directed at explaining the impact of his medical condition to me. The Crown offers no dispute of the diagnosis of Mr. Watson’s condition referenced in those letters (Relapsing Remitting Multiple Sclerosis and Myasthenia Gravis. The most recent of the four letters (September 20, 2024) contains a fair summary of the prior three:

“Both of these conditions have been very active, and he requires careful outpatient monitoring for these. He gets infusions of medication for his MS (which also treats his MG). He requires careful ongoing monitoring of these conditions as well as ongoing treatment with immunotherapy.”

The author of this letter (Dr. Charles Kassardjian) concluded “I am concerned that any prolonged incarceration will put him at risk of worsening of his underlying conditions which could lead to significant disability or even be life threatening”.

[20] What I conclude from this correspondence is that Mr. Watson suffers from a variety of apparently incurable medical conditions which are on a worsening trend but which do not progress in an even or straight line. He requires and will continue to require fairly extensive medical treatment the intensity of which is likely to increase over time, once again, not on a straight-line basis. There is also a very real risk of Mr. Watson’s health being impaired materially if deprived of proper treatment including access to physiotherapy and there have been instances – particularly where Mr. Watson was in short-term detention after being arrested for alleged breaches of release conditions – where he was not given access to the necessary aids (walking braces and the like).

[21] What I do not derive from this – and cannot presume to infer – is that custodial authorities, properly alerted to his condition, would be unable to provide the requisite access to care, medication and therapy. Indeed, he has been receiving care since his re-incarceration in July 2024 and the letter of Dr. Kassardjian does not suggest that he has not been able to be treated since his most recent arrest. He has continued to receive care while in custody after his arrest, including several periods of extended hospitalization outside the detention centre.

[22] The Crown is not suggesting in this case that Mr. Watson be ineligible for parole for an extended period of time. The Parole Board has the ability to monitor his treatment while in custody, to assess any deterioration in his health and to consider whether necessary treatment and therapy can be better provided in a parole setting as compared to incarceration and to consider all of these factors in connection with potential early release or statutory release dates.

[23] I conclude that his medical condition is entitled to consideration in the overall Duncan analysis of unduly harsh pre-sentence custody and must also be given consideration in the context of parity and proportionality of sentence in relation to the time frame post-sentencing. However, the degree of weight of this factor must not be such as to overwhelm the other primary sentencing goals.

[24] Mr. Watson’s rehabilitation prospects can only be described as poor to non-existent given his extensive criminal record. Hope springs eternal but there can be no realistic assessment of his rehabilitation prospects as being anything other than minimal.

Calculation of pre-sentence custody (s. 719(3.1) and Duncan)

[25] The Crown does not oppose the application of the 1.5:1 maximum pre-sentence custody credit prescribed by s. 719(3.1) of the Criminal Code. The prescribed maximum has long become the de facto floor subject to additional Duncan credit discussed earlier. I do not propose to interfere with that long-established practice here.

[26] The parties have come to an agreement on the aggregate pre-sentence credit to be granted to Mr. Watson for the period from his arrest on January 28, 2020 until the date of his sentencing (at which point he shall commence serving the sentence pronounced by me). In effect, Mr. Watson is “using” all his pre-sentence custody time for the purposes of this sentence and will not be able to claim it again at his subsequent sentencing hearing in January (or in respect of the July 2024 charges should he be convicted of those offences in future).

[27] While I would not normally apply a specific number of days to the Duncan mitigating circumstance since no other mitigating circumstances are subjected to such a numerically precise calculus. I am prepared to do so in this case where the parties have come to a specific agreement on the point.

[28] The parties have agreed to give Mr. Watson credit for a total of four years and forty-six days of pre-sentence custody inclusive of s. 719(3.1) and any Duncan considerations from January 28, 2020 until the present time. I am so ordering.

Position of the Parties

[29] The Crown seeks a global sentence of 20 years and filed extensive written submissions outlining the reasons for this position.

[30] The defence had a different view of the appropriate sentencing range and where Mr. Watson ought to be considered to fall within it having regard to his unique characteristics. The defence urged a sentence of between 13 years to not more than fifteen years.

[31] Both positions were expressed as the “gross” sentence prior to the application of the agreed 4 years and forty-six days of pre-sentence credit.

Application of Sentencing Principles

[32] I reviewed the applicable sentencing principles in the reasons for decision on the sentencing of Mr. Zang and I shall adopt my comments in that decision without repeating them here.

[33] Clearly the paramount sentencing objectives in the case of kidnapping are denunciation and deterrence. This category of crime corrodes society’s collective sense of security in a very deep and fundamental way. In R. v. Wong & Poon, 2008 BCCA 64, Frankel J.A. remarked (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.

[34] 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.

[35] Mr. Watson’s lengthy and persistent criminal record, particularly viewed in the context of the sharp upward bend in the seriousness of the most recent offences, suggests that weight must also be given to separating this offender from society and to the promotion of a sense of responsibility in the offender and an acknowledgement of the harm done to the victims and the community.

[36] Proportionality has been described by our Court of Appeal as a “lodestar” sentencing principle: R. v. Morris, 2021 ONCA 680 at para. 59. In considering the principle of proportionality, it is clear that the crime of kidnapping must be considered at or near the most serious end of the spectrum. Within the spectrum of grave kidnapping cases, the criteria described by the British Columbia Court of Appeal in R. v. Brar, 2014 BCCA 175 at para. 23 is often referred to as a guide to considering the gravity of an offender’s conduct in the context of a kidnapping charge. Mr. Watson’s participation in this offence was central and not peripheral. The kidnapping was carried out for ransom and carried out in the dead of night in the victim’s home. There was extensive planning and premeditation. The confinement of the victim was both long (approximately two weeks) and particularly harsh. It only ended when police discovered where the victim had been hidden and executed a coordinated extraction. These circumstances place both the gravity of the offence and the degree of Mr. Watson’s responsibility for it near the very serious end of the spectrum.

[37] I reviewed the sentencing range for kidnapping of this sort in my decision in the Zang matter. As well, I am indebted to Forestell J. for her review of the precedents in this area in her decision on the sentence of Mr. Matthews, one of the participants in this crime brought in by Mr. Watson: R. v. Levy, 2024 ONSC 1452.

[38] The parity principle requires me to look not only at precedents from other cases, but precedents from this case. Mr. Zang received a sentence of 20 years reflecting his central role as mastermind but also the aggravating circumstance of responsibility for administration of a noxious substance. While Mr. Watson was not charged with the administration of a noxious substance, Mr. Zang’s prior criminal record is comparatively minor relative to the decades-long consistent record of Mr. Watson. As well, Mr. Matthews was sentenced to 14 years for kidnapping – reduced by a year to reflect the harsh conditions of his pre-trial detention – plus a further two years consecutive for administering the noxious substance to Mr. Jin. Mr. Matthews participation in this crime was certainly more kinetic than that of Mr. Watson, but Mr. Matthews was fundamentally an order-follower rather than an order-giver and he had the sentencing benefit of remorse, a willingness to address his addiction problems and a guilty plea.

[39] Having regard to the sentencing objectives discussed, to the range of sentences handed down in other comparable cases, cases at the more serious end of the spectrum, to the sentences handed down to Mr. Zang (who did not plead guilty) and to Mr. Matthews (who did plead guilty and expressed remorse) but also recognizing that these two were also convicted of administering a noxious substance, it is my view that a sentence of 15 years is a fit and proper sentence that achieves a proper balancing of the sentencing objectives.

[40] When considering any sentence, I must also bear in mind the totality principle to ensure that the overall sentence does not exceed the overall culpability of the offender. Mr. Watson is before me for sentencing on a single charge. I have made some reference here to numerous prior convictions for which he has been sentenced over the years but also to the three matters which are currently pending for trial and/or sentencing. I have done so for the purpose of context and primarily in connection with assessing his prospects for rehabilitation (which I have assessed as exceptionally poor given the persistence of his criminal behaviour over time and its most recent trajectory). I am not taking those three recent matters into account for any other purpose, including totality. I understand Mr. Watson is to be sentenced on the two home invasion matters in January and is awaiting trial on the July 2024 matter. What impact, if any, the sentence I hand down today may have upon those other matters in connection and the application, if any, of the principle of totality to those proceedings will be for those sentencing judges to assess and determine. I consider the sentence I have fashioned in this case for this offence to be appropriate having regard to the single conviction before me and all of the applicable sentencing principles for the reasons discussed.

Disposition

[41] For the foregoing reasons, I sentence Mr. Watson as follows:

a. For kidnapping (Count 1, s. 279): 15 years less pre-sentence custody credit totalling 4 years and 46 days.

[42] The following ancillary orders shall be made:

a. Credit for pre-sentence custody (s. 719 (3.1)): b. A lifetime s. 109 firearms prohibition; and c. A DNA order.

[43] Orders accordingly.

S.F. Dunphy J. Date: December 11, 2024