CRIMINAL SENTENCES IMPACTING NEW REMOVAL PROVISIONS

This is one of the first reported cases dealing with sentencing in criminal courts taking not consideration the amendments to IRPA where a jail sentence of six months makes the person ineligible for an appeal of his removal order to the IAD. Note hat the judge in the case below carefully reviewed the impact of the Supreme Court of Canada decision in R.V Pham. The court was not persuaded by the request for a lenient sentence of under six months.

Under the previous IRPA provisions, courts routinely reduced sentences for very serious criminals to "two years less a day" in order to preserve their appeal rights to the IAD, where they could argue that despite their criminal records, they should be allowed to remain in Canada biased on "humanitarian and compassionate grounds". It became apparent that serious criminals with lengthy criminal records managed to persuade the IAD to grant them a stay of deportation. The amendments make it harder to obtain lenient sentences from the courts ,as they would not be in accordance with eh principles of parity, where Canadian citizens could potentially receive longer sentences than those who are only permanent residents.

The amendments do not address, however, the possibility that serial criminals could still escape depuration if they receive a series of  short convictions under six months for separate incidents at different times, such as a series of minor sentences, fines, probation, etc. over time.

R. v. Zheng

Between Her Majesty the Queen, and
Baojung Zheng

[2013] O.J. No. 3218

2013 ONSC 4582

 Ontario Superior Court of Justice
Barrie, Ontario

M.K. Fuerst J.

Oral judgment: May 30, 2013.

(33 paras.)

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REASONS FOR SENTENCING

1     M.K. FUERST J. (orally):-- Baojun Zheng pleaded guilty to production of marijuana, and possession of marijuana in excess of three kilograms for the purpose of trafficking. It is conceded that he must be sentenced to a term of actual jail, but Crown and defence counsel differ as to the length of the term.

The Circumstances of the Offences

2     In July 2008 the police located a marijuana grow operation in a field in Severn Township, on property owned by a man named Ferreira. They obtained a general warrant to enter the property and install an alarm system.

3     In September the alarm was set off. The police went to the property and found that the marijuana had been harvested.

4     In May 2009 the police obtained a second general warrant. They entered the property to do surreptitious surveillance. They returned to the property on four occasions in June. On the first two occasions, they confirmed that marijuana plants were on the property. On the third occasion, they saw Mr. Zheng attend at the property and drop off boxes of marijuana plants. On the fourth occasion, they saw Mr. Zheng and others tending the marijuana plants.

5     On June 24 the police entered the property again. They saw Mr. Zheng and others tending the marijuana plants, and using equipment. They arrested Mr. Zheng and his companions.

6     There were just under 6000 marijuana plants on the property.

The Circumstances of Mr. Zheng

7     Mr. Zheng is 52 years old. He has no criminal record. Following his arrest he was released on bail after spending one week in custody. The bail was not a house arrest release, but it included a nightly curfew. He has been on bail for just under four years, without incident.

8     Mr. Zheng came to Canada from China eight years ago. He became a permanent resident of Canada in April 2005. He has an adult daughter living here.

9     Mr. Zheng does not speak English. His usual employment is as a labourer. He was to have been paid $300 per week for tending the grow operation as a gardener, but says that he never was paid.

10     Mr. Zheng would like to become a Canadian citizen. However, he has obtained a written legal opinion from an experienced immigration lawyer that if he receives a jail term in excess of 6 months for either offence, he will be removed from Canada.

11     One of Mr. Zheng's co-accused, who pleaded guilty and gave a videotaped "KGB" statement to the police before his plea, received an 18 month conditional sentence of imprisonment.

12     In court, Mr. Zheng expressed regret for his conduct.

The Positions of the Parties

13     On behalf of the Crown, Ms. Jones seeks a sentence of 14 and a half months in jail, after credit is given for the equivalent of two weeks in pre-trial custody, followed by probation for one year. She emphasizes the size of this marijuana grow operation. She submits that a jail term of this length is required to meet the objectives of denunciation and general deterrence. She also seeks a s. 109 order for 10 years, and a DNA order.

14     On behalf of Mr. Zheng, Mr. Sederoff seeks a total sentence of 6 months less one day, or in the alternative a sentence of less than six months in jail on each count, to be served consecutively. He emphasizes that Mr. Zheng was a gardener only and had no ownership interest in the grow operation. Mr. Zheng pleaded guilty and is a compellable witness for the Crown. Mr. Sederoff submits that the immigration consequences are a relevant consideration in determining the fit sentence. He does not oppose the request for probation to follow the jail term, or the ancillary orders requested by the Crown.

The Principles of Sentencing

15     The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

16     Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

17     Section 10(1) of the Controlled Drugs and Substances Act states that the fundamental purpose of any sentence for a designated substance offence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, treatment, and acknowledgement of the harm done to victims and the community.

Analysis

18     The principles of denunciation and deterrence, both general and specific, are paramount in sentencing an offender for production of marijuana. That said, the range of sentence is broad and dependent upon facts including the number of plants involved, and the role played by the particular offender. In the recent decision of R. v. Nguyen, 2013 ONCA 51, the Ontario Court of Appeal reduced a global jail term of 15 months less pre-trial custody credit to one of 10 months less pre-trial custody credit where the commercial residential grow operation involved more than 1200 plants with a street value of about $1.2 million, the offender was a gardener, there was a hydro by-pass in place, and the accused pleaded guilty.

19     The size of the grow operation in the case before me was much larger than that in Nguyen. Although I was not given an estimated street value of the plants, it obviously was a commercial enterprise. However, there is no suggestion that Mr. Zheng was anything other than a gardener, and, it seems, one of several persons performing that function for the benefit of the owner or owners of the operation. While it is conceded that he was to be paid for his work, there is no evidence that he received any money at all. I also take into account in mitigation that the dangerous circumstance of a hydro by-pass was absent in this case.

20     Mr. Zheng is a first offender. It is a further mitigating factor that he pleaded guilty, albeit after a trial date was set. His guilty plea is a sign of his remorse and acceptance of responsibility for his wrong-doing. He expressed his remorse to me in court. I had an opportunity to observe his demeanour, and I am satisfied that his remorse is sincere. Additionally, it is a mitigating factor that Mr. Zheng has abided by the conditions of his release for almost four years without difficulty. The nature of his release, however, does not warrant the credit appropriate where an offender has been subject to house arrest. I also disagree with Mr. Sederoff that the fact Mr. Zheng could be called by the Crown to testify against his former co-accused is a mitigating factor.

21     Balancing the various factors, I agree that the total jail term suggested by Crown counsel is within the range of sentence for these offences. I take into account, however, the collateral immigration consequences of such a sentence for Mr. Zheng: see, R. v. Pham, 2013 SCC 15. I am satisfied that two consecutive jail terms of 6 months less a day, for a total sentence of 12 months less two days in jail, less an additional two weeks of pre-trial custody credit, would fall within the appropriate range of sentence, be consistent with the principles of sentencing including denunciation and general and specific deterrence, recognize Mr. Zheng's moral blameworthiness, and take into account the collateral immigration consequences for him without allowing them to dominate the sentencing exercise.

Conclusion

22     Mr. Zheng, please stand. On count 2 I sentence you to 6 months less one day in jail, less 14 days credit for your pre-sentence custody; on count 1 I sentence you to 6 months less one day in jail to be served consecutively and to be followed by 12 months' probation, for a total sentence of 12 months less 16 days in jail followed by 12 months' probation. The terms of the probation are the statutory terms, plus the following:

 

·        1. 

Report to a probation officer within 2 days of your release from jail and thereafter as required; 

·        2. 

Have no association with your former co-accused, who shall be named for the Registrar by Crown counsel; 

·        3. 

Not purchase, possess or consume non-prescription drugs. 

23     I make a s. 109(2)(a) weapons prohibition order for 10 years and a s. 109(2)(b) order for life. I order you to provide bodily fluid samples for the purpose of DNA testing.

1     You may be seated.

2     Ms. Jones, is there anything that needs to clarified, or Mr. Ferri? Anything that is not clear?

3     MS. JONES: Did Your Honour make a term not to possess any non-prescribed drugs?

4     THE COURT: Yes.

5     MS. JONES: You did, okay.

6     THE COURT: Not purchase, possess or consume non-prescription drugs.

7     MS. JONES: I think that's it for me.

8     THE COURT: Mr. Ferri, anything?

9     MR. FERRI: No, thank you.

10     MS. JONES: Did you want to -- I think counsel wanted that there be a recommendation for --

11     MR. FERRI: Oh yes, thank you for reminding me. Your Honour, if it's possible, I'd like a recommendation that Mr. Zheng serve his sentence somewhere near the City of Toronto where his family resides.

12     THE COURT: Any objection to that, Ms. Jones?

13     MS. JONES: No, I don't. I think the difficulty was we weren't exactly sure where that would be.

14     MR. FERRI: I'm sure the correctional facility will be able to deal with that.

15     MS. JONES: That's fine.

16     THE COURT: All right, I will make that recommendation.

17     MR. FERRI: Thank you, Your Honour. I thank my friend.

18     THE COURT: All right, and there were no other counts to be withdrawn.

19     MS. JONES: There aren't. There were just the two.

20     THE COURT: I have endorsed the indictment as follows: Mr. Zheng is sentenced on count 2 to 6 months less one day in jail, less 14 days of presentence custody credit. On count 2, to 6 months in jail, less one day, consecutive, followed by 12 months' probation on conditions read into the record. The total sentence is 12 months less 16 days in jail, plus 12 months of probation. A s. 109(2)(a) order for 10 years and s. 109(2)(b) order for life, and a DNA order is made.

21     MS. JONES: I'm just going to clarify, and I'm sure it was just a slip of the tongue.

22     THE COURT: Yes.

23     MS. JONES: Count 1 he is sentenced to 6 months less a day, less 14 days and count 2 --

24     THE COURT: No, I did it the opposite way.

25     MS. JONES: Okay, because you said count 2 and count 2. So which one is the --

26     THE COURT: You are right, sorry.

27     MS. JONES: Yeah. When you said it first you had said count 1.

28     THE COURT: Yes, when I read it from my decision, and I read it improperly from the endorsement on the indictment. So on count 2 the sentence is 6 months less one day in jail, less the 14 days pretrial custody credit.

29     MS. JONES: Okay.

30     THE COURT: And I'm sorry, on count 1, it is 6 months in jail, less one day, to be served consecutively and to be followed by six(sic) months' probation. So in other words, the longer actual sentence is on count 1, the production. That is the way I intended it.

31     MS. JONES: And to be followed by 12 months.

32     THE COURT: Yes, to be followed by 12 months' probation.

33     MS. JONES: Got it. Thank you. And so there is some paperwork that needs to be completed, which will be as quickly as they can. All right, thank you.