



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lin, 2020 ONCA 768

DATE: 20201204

DOCKET: C64663

Huscroft, Miller and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Xiangming
    Lin

Appellant

Mindy Caterina, for the appellant

Rick Visca and Kerry Benzakein, for the
    respondent

Heard: November 2, 2020 by video conference

On appeal from the convictions entered by
    Justice Mary E. Misener of the Ontario Court of Justice on August 1, 2017 and
    on September 25, 2017 and from the sentence imposed on November 10, 2017, with
    reasons reported at 2017 ONCJ 777.

Nordheimer J.A.:

[1]

Mr. Lin appeals from his conviction on various
    drug charges. He also seeks leave to appeal the sentence imposed upon him. At
    the conclusion of the hearing, we dismissed the conviction appeal, with reasons
    to follow, and reserved the sentence appeal.

Background

[2]

The appellant, his adult son, and his ex-wife
    were arrested in late April 2015 and charged with possession of ketamine for
    the purpose of trafficking and possessing proceeds of crime. The appellant and
    his ex-wife were also charged with trafficking ketamine. The charges arose from
    Project Ice Castle, a York Regional Police Service investigation of ketamine
    labs in York Region. The appellants arrest followed the execution of a search
    warrant at his ex-wifes condominium in Scarborough, during which police
    discovered 60 kilograms of ketamine.

[3]

On May 13, 2015, the appellant was granted bail
    on those charges.

[4]

On March 24, 2017, the appellant was again
    arrested. This time he was charged with producing ketamine and failing to
    comply with his recognizance. The charges arose from Project Apollo, an
    investigation by the Toronto Police Service into three ketamine labs in the
    Greater Toronto Area.

[5]

With respect to the Project Ice Castle charges,
    the appellant brought an application to stay for an alleged violation of his
    right to a speedy trial under s.  11(b) of the
Canadian Charter of
    Rights and Freedoms
. On May 17, 2017, the trial judge dismissed the application
    for a stay.

[6]

After his s. 11(b) application was dismissed,
    the appellant resolved both sets of charges by pleading guilty. He pleaded
    guilty to one charge from Project Ice Castle, possession of ketamine for the
    purpose of trafficking, on August 1, 2017 and to the Project Apollo charges on
    September 25, 2017.

[7]

After a sentencing hearing, the trial judge
    sentenced the appellant to seven and one-half years on the Project Ice Castle
    charge, to seven and one-half years consecutive on the Project Apollo charge, and
    to six months consecutive on the breach of recognizance charge, for a total
    sentence of 15 ½ years. The appellant was given 447 days of credit for
    pre-sentence custody leaving slightly more than 14 years to serve.

The conviction appeal

[8]

The appellant seeks to appeal his conviction on
    the Project Ice Castle charge through a challenge to the dismissal of his
    application for a stay under s.  11(b). However, in order to advance that
    challenge, the appellant must first have this court set aside his guilty plea.
    This situation arises because the appellant did not follow the procedure
    outlined in
R. v. Fegan
(1993), 13 O.R. (3d) 88 (C.A.).

[9]

In
Fegan
, Finlayson J.A. held that the
    proper procedure to be followed, where an accused person wishes to resolve the
    charges but maintain the right to appeal an interlocutory or pre-trial ruling,
    was for the accused person to plead not guilty but, at the same time, not to
    contest the facts underlying the Crowns case. This could be done through an
    agreed statement of facts, or, less formally, through the accused person simply
    making sufficient factual admissions as to satisfy the essential elements of
    the offence.

[10]

The appellant contends that this procedure was
    not explained to him by either of his counsel. The appellant had two lawyers at
    the relevant times. The appellant said that he could no longer afford his first
    lawyer after the s. 11(b) ruling was made. He retained the second lawyer, who
    was his lawyer at the time that the guilty plea was entered. The appellant says
    that neither of his lawyers told him about the
Fegan
procedure or of
    the consequences of simply pleading guilty. The appellant says that it was
    always his intent to appeal the dismissal of his application for a stay and
    that he entered his guilty pleas based on his understanding that he would still
    be able to appeal that dismissal.

[11]

In order for a guilty plea to be valid, it must
    be voluntary, unequivocal and informed:
R. v. Faulkner
, 2018 ONCA
    174, 407 C.R.R. (2d) 59, at para. 84. In dismissing the conviction appeal, we
    did not accept that the appellants guilty plea in this case was not a valid
    one, as that term is defined. We did not accept the appellants contention that
    he always wished to appeal the s. 11(b) decision. To the contrary, from the
    record before us, it was apparent that the appellant had two principal
    objectives in pleading guilty. One was to extricate his ex-wife and son from
    the criminal charges that they faced. It was part of the guilty plea agreement
    that the Crown would withdraw the charges against the appellants ex-wife and
    son. The other was for the appellant to obtain the lowest sentence. Indeed, the
    appellant instructed his lawyer to try to get a sentence of eight years, after
    he rejected the Crowns proposed joint submission of 14 years.

[12]

We were reinforced in our conclusion on this
    point by the very detailed plea inquiry that the appellants lawyer undertook
    with the appellant prior to the entering of his plea. In the course of that
    plea inquiry, and as reflected in his handwritten notes, the appellants lawyer
    confirmed the following:

You understand you are waiving your right to
    advance any other argument for Charter relief including any alleged violations
    of your rights under ss. 7, 8, 9, 10, 11(b) of the Charter: Yes.

You understand that while you may very well be
    entitled to appeal any sentence ordered against you and subject to the arguments
    that may be made by your appeal counsel, you will almost certainly not be allowed
    to appeal your plea of guilty to the charges as discussed: Yes.

[13]

The appellants
    counsel, who was involved at the time of the guilty plea, was cross-examined
    for the purposes of this hearing. He was asked about the plea inquiry as it
    related to the appellants stated desire to appeal the s. 11(b) ruling. In
    response, the lawyer said:

A.  Youre right. To my recollection, the
    idea of appealing section 11(b) or any other judgment that may have been handed
    down when previous counsel represented him was never raised with me at all.

[14]

The appellant acknowledges
    that he did not raise this issue with his lawyer at the time of the plea. His
    current counsels suggestion that the appellant did not do so because the
    appellant would not know enough to do so, is an unpersuasive one. As the above
    notes reflect, the appellant was twice asked expressly about matters relating
    to s. 11(b), and being able to appeal his guilty plea, and yet neither of those
    instances caused him to question his lawyer about what he now says was his
    ongoing desire to appeal the s. 11(b) ruling. If those appeal rights were at
    the forefront of his mind at the time, it is incomprehensible that he would not
    have said something to his counsel about them.

[15]

The appellant
    was represented throughout these events by capable counsel. We did not accept
    that his guilty plea was not informed and unequivocal. Even if the appellant
    harboured a continuing desire to appeal the adverse s. 11(b) ruling, he did not
    communicate that fact to either of his lawyers so that they could provide
    proper advice to him. It is simply too late now for him to try to do so. It is,
    after all, the principle of finality that underlies the general reluctance to
    set aside guilty pleas.

[16]

Since we were
    not prepared to set aside his guilty plea, the appellant could not get to his
    challenge of the s. 11(b) decision.

The sentence appeal

[17]

The appellant
    seeks leave to appeal the 15 ½ year sentence imposed on him. He submits that a
    sentence of nine years would have been more appropriate.

[18]

Sentencing
    decisions are entitled to deference from appellate courts. Appellate courts are
    only entitled to intervene if the sentencing judge has committed an error in principle,
    the failure to consider a relevant factor or the erroneous consideration of an
    aggravating or mitigating factor and such error had an impact on the sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at
    para. 44. An appellate court may also intervene if the sentence the trial judge
    imposed is demonstrably unfit:
Lacasse
,
at para. 51.

[19]

Both of these
    routes for intervention are applicable in this case. First, the sentences in
    this case were demonstrably unfit. The appellant was a 51-year-old first
    offender who pleaded guilty. While the sentencing judge acknowledged that those
    facts were significant mitigating factors, she does not appear to have factored
    those mitigating factors into the ultimate sentence that she imposed. The
    imposition of a 15 ½ year sentence on a first offender who pleaded guilty amply
    demonstrates that failure.

[20]

In addition,
    the sentences imposed reflect errors in principle, namely, the principles of
    parity and proportionality. On this point, the sentencing judge referred to a
    number of sentencing decisions in the course of her sentencing reasons, the
    majority of which had imposed sentences ranging between five and eight years on
    similar offenders. Yet, the sentencing judge determined that sentences of 10
    years on the two sets of drug charges (prior to reductions under the totality
    principle) were appropriate, without explaining how she came to that number.

[21]

One of the
    decisions to which the sentencing judge made reference might be seen as driving
    her conclusion on sentence, namely,
R. v. Ling
, 2014 ONCA 808, 328 O.A.C. 210. However, that
    decision is distinguishable on its facts.

[22]

In
Ling
, the
    accused were involved with three different drugs: MDMA, ketamine, and methamphetamine.
    Methamphetamine is recognized as a much more serious drug than ketamine or MDMA.
    In noting that, I do not mean to diminish the seriousness of any of these drugs
    or the illicit purposes to which they can be put. The accused were also
    convicted of both possessing each of these drugs for trafficking and producing
    each of these drugs. Further, some of the pills that were found were packaged
    as MDMA but, in fact, contained methamphetamine and thus represented a serious
    risk to the ultimate consumer. Yet further, the evidence was that the accused
    were involved in one of the two largest ecstasy laboratories that the police
    had discovered in Canada. Mr. Ling received a sentence of 16 years (one more
    year than the appellant on the drug charges) and the other two accused received
    sentences of 14 years (a year less than the appellant).

[23]

I contrast the
    decision in
Ling
with the decision in
R. v. Wu
, 2017
    ONCA 620, another case to which the sentencing judge was referred. In
Wu
, the
    accused was convicted of three counts of possession for the purpose of
    trafficking. He had been acquitted on counts accusing him of production. The
    evidence was that the accused had possession of 150 kilograms of MDMA, ketamine,
    and methamphetamine (two and one-half times as much as the appellant). Mr. Wu
    was sentenced to eight years. The Crown sought leave to appeal the sentence and
    submitted that a sentence of 12 years was appropriate. The Crowns sentence
    appeal was dismissed.

[24]

Before
    concluding on this issue, I will mention one other case to which the sentencing
    judge made reference:
R. v. Kwok
, 2015 BCCA 34, 320 C.C.C. (3d) 212. This
    case is particularly helpful as it deals with ketamine alone, that is, not in
    conjunction with other drugs. In that case, the three accused had imported
    1,000 kilograms of ketamine into Canada. The sentencing judge had sentenced the
    two principal accused to 16 years for importation and 12 years concurrent for
    possession for the purpose of trafficking after a trial. On appeal, the British
    Columbia Court of Appeal reduced those sentences to 12 years for importing and
    eight years for possession for the purpose of trafficking. As the court noted,
    at para. 112, [i]mporting drugs into Canada is more serious on the scale of
    culpability than trafficking drugs.

[25]

Thus, with the
    exception of
Ling
, none of the cases to which the
    sentencing judge made reference would have suggested that a sentence of 10
    years on these drug offences was appropriate and, yet, that is the sentence
    that the judge arrived at without, as I have said, explaining why she concluded
    that that was the appropriate sentence.

[26]

In concluding
    as she did, the sentencing judge failed to impose sentences that were proportionate,
    as that principle is enunciated in s. 718.1 of the
Criminal Code
.
    The failure to proper apply the principle of proportionality can lead to a
    sentence that is demonstrably unfit. This point is made in
Lacasse
,
    where Wagner J. said, at para. 53:

A sentence will
    therefore be demonstrably unfit if it constitutes an unreasonable departure
    from this principle. Proportionality is determined both on an individual basis,
    that is, in relation to the accused him or herself and to the offence committed
    by the accused, and by comparison with sentences imposed for similar offences
    committed in similar circumstances.

[27]

A review of the
    cases would suggest that a sentence of between five and eight years would normally
    be imposed for possession for the purpose of trafficking in ketamine with a
    slightly higher range, perhaps six to ten years, for production of ketamine. In
    setting out this range, I am cognizant of the caution in
Lacasse
, at para. 60,
that sentencing ranges are primarily guidelines, and not
    hard and fast rules.

[28]

A final
    complaint raised by the appellant about the sentences relates to the sentence
    imposed on the conviction for the appellants failure to comply with his
    recognizance. The sentencing judge imposed a sentence of six months on this
    conviction, consecutive to the sentences that she had imposed on the drug
    offences. The appellant complains that this amounted to double counting, or
    double punishment, because the sentencing judge had used the fact that the
    appellant had been on a recognizance at the time as an aggravating factor for
    sentencing purposes on the second set of drug charges. The respondent disagrees
    and says that the sentence on the breach of recognizance charge, and its use as
    an aggravating factor on the drug sentences, represents two different legally
    protected interests.

[29]

The proper
    approach to this issue depends on the factual foundation for the breach of
    recognizance charge. Where the facts underlying that charge are separate and
    distinct from the related charges, for example, a breach of a non-contact
    provision, it may well be that there are two different legally protected
    interests in play that would dictate separate and distinct sentences. That is
    not this case, however. In this case, the basis for the breach of recognizance
    charge, as expressed by the trial judge, was:

In any event,
    theres no issues that he had these conditions restricting him from possessing
    and consuming drugs and not to possess scales, growing equipment, drug
    paraphernalia, chemical precursors, lab precursors, lab equipment.

[30]

It will be seen
    that the factual basis for the breach of recognizance conviction was also the factual
    basis for the drug convictions. In those circumstances, there is an element of
    double punishment by using the facts as an aggravating factor on the drug
    offences and then using those same facts as warranting a consecutive sentence
    on the breach of recognizance conviction. The simplest way of avoiding that double
    impact is to make the breach of recognizance sentence concurrent to the drug
    sentences.

[31]

In the end
    result, I would grant leave to appeal sentence and reduce the sentence in the
    following manner: on the York Region (Project Ice Castle) conviction, that is,
    the possession for the purpose of trafficking conviction, I consider the
    appropriate sentence to be six years, to reflect the particular aggravating
    factor of the quantity of drugs of which the appellant had possession. On the
    Toronto (Project Apollo) conviction, that is, the production charge, I consider
    the appropriate sentence to be eight years, reflecting the fact that production
    is a more serious offence than possession. Further, the sentences on the two
    sets of drug offences should be consecutive as they involve different criminal
    conduct committed at different times.

[32]

However, a
    total sentence on the drug convictions of 14 years is still not proportionate
    for a first offender who pleaded guilty. I consider a sentence of 10 years to
    be the highest that could be justified, given the appellants circumstances and
    the circumstances surrounding the convictions. In order to achieve that
    sentence, I would reduce the sentences to five years consecutive on both sets
    of drug convictions to reflect the proportionality principle. Finally, I would
    make the sentence of six months on the failure to comply with recognizance
    conviction concurrent to the other sentences thus making the total sentence one
    of 10 years.

[33]

The appellant
    is still entitled to the same credit for pre-sentence custody of 447 days as determined
    by the sentencing judge. Also, all of the other ancillary orders remain.

[34]

Accordingly, I
    would grant leave to appeal sentence and reduce the sentences in accordance
    with these reasons. The conviction appeal is dismissed.

Released: December 4, 2020 GH

I.V.B. Nordheimer J.A.

I agree. Grant
    Huscroft J.A.
I agree. B.W. Miller J.A.


