R. v. Yang Date:, 2017 BCPC 286

Citation: R. v. Yang Date: 20171002 2017 BCPC 286 File No: 233226-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. WEI CHANG YANG REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Federal Crown: Heather Magnin and Travis Johnson Counsel for the Defendant: Chris Johnson Place of Hearing: Vancouver , B.C. Date of Hearing: July 26, 2017 Date of Judgment: October 2, 2017 OVERVIEW

[ 1 ] Mr. Yang pled guilty to possession of marihuana for the purpose of trafficking, production of MDMA, possessing MDMA for the purpose of trafficking and production of MDMA. The mandatory minimum sentence for producing MDMA is 2 years. Counsel argues that the mandatory minimum sentence of 2 years would subject Mr. Yang to cruel and unusual punishment and therefore, violate Mr. Yang’s rights pursuant to s. 12 of the Canadian Charter of Rights and Freedoms . [ 2 ] The Crown argues that a fit sentence is a 3 year custodial sentence.

Given the Crown’s position this court will determine if the mandatory minimum will have an impact on the sentence imposed. This is because if the mandatory minimum does not affect the sentence to be imposed then the s. 12 argument becomes moot. [ 3 ] This approach of first considering if a mandatory minimum sentence will impact the overall sentence was referenced in R. v.

Lloyd, 2016 SCC 18 where paragraph 18 Chief Justice McLachlin wrote: [18] To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr.

Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case.

To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process. [ 4 ] If this court determines that the 2 year mandatory minimum sentence does not materially impact the sentence to be imposed, this court will then consider what is a fit and appropriate sentence. CIRCUMSTANCES OF THE OFFENCES Possession of marihuana for the purpose of trafficking [ 5 ] On August 14, 2013, the police had Mr.

Yang under surveillance. During the surveillance the police observed Mr. Yang enter a residence carrying what appeared to be a rolled up pillow/case banker’s bag. After leaving the residence, Mr. Yang met with several unknown males where he was observed looking into a bag containing marihuana. [ 6 ] After the meeting, Mr. Yang drove to a nearby laneway where he met another vehicle. Mr. Yang then transferred 4 large garbage bags from the trunk of the other vehicle to his vehicle. He then drove away and was stopped by the police. [ 7 ] The police searched Mr. Yang’s vehicle.

Inside they found large garbage bags and inside each bag were pre-packaged bags of marihuana. In total the 4 bags contained 111 individual bags of marihuana for a total weight of 55 pounds. Production and possession of MDMA for the purpose of trafficking [ 8 ] On August 15, 2013, the police executed a search warrant at Mr. Yang’s residence. In Mr. Yang’s garage they located laboratory equipment used in the production of MDMA, various chemicals, and MDMA. [ 9 ] Mr.

Yang’s finger prints were located on some of the laboratory equipment including; a scale, a funnel and two glass beakers. [ 10 ] The total quantities of drugs and precursors were as follows: (a) 7.13 kilograms of powder containing MDMA (Ecstasy) (5.86 kilograms of 100% pure MDMA); (b) 20.2 litres of liquid MDMA with Isasofrole and Safrole; (c) 3 blue containers of MDP2P (11 cm in height and 46 cm circumference); (d) 9 Pails of hydrochloric acid; (e) 1 container of muriatic acid; (f) 1 container of methyl hydrate (2.7 litres); (g) 68 kilograms of caustic soda; (h) 4 pails of acetone, 18.9 litres (2 full, 2 empty); (i) 40 lbs of dried marihuana and marihuana shake; (j) 11.2 grams of substances found to contain methamphetamine (BR#2 and storage area); (k) 8.5 grams of ecstasy (BR #2); and (l) 1.2 grams of ketamine (BR #2). [ 11 ] An expert report authored by Laboratory Specialist, Glenn Wong, was filed as exhibit 6.

In the report Mr. Wong concluded: The results of the analysis of items seized at the premises are consistent with the reaction to convert MDP2P to MDMA via methylamine

and a reducing agent. In addition, the presence of reaction by-product along with MDMA reinforces the rationale that MDO2P wasreacted with a reducing agent in the presence of methylamine to yield MDMA. The total quantity of MDMA HC1 that was found at thepremises was approximately 5.86 kg MDMA HC1. [12] Also found and admitted into evidence were various documents and receipts. One set of documents appear to be score sheets. There were also numerous handwritten financial entries along with various numbers.

Additional documents and writings were related tothe growing of plants. [13] As for the receipts, some show purchases of items that are precursors to the production of MDMA, while others are for thepurchase of items used in a laboratory. Some of these items were located in Mr. Yang’s garage. An example would be invoices for theceramic funnel and the clear glass beaker. Of note, is the receipts were for several years prior to 2013. [14] Counsel for Mr. Yang submitted that a possible conclusion could be that Mr. Yang was helping a party move and that he wasstoring the materials. Mr.

Yang did not testify on this issue; moreover, the manner in which the materials were stored, i.e. some alreadymixed, the police surveillance and the documents, demonstrate beyond a reasonable doubt that Mr. Yang was actively involved in theproduction of MDMA. MR. YANG’S CIRCUMSTANCES [15] Mr. Yang is 46 years old. He immigrated to Canada when he was 17 and he has a grade 9 education. He is currently workingat 2 part-time jobs. He was married between 2001 - 2013. He is currently in a common-law relationship. Mr. Yang does not have acriminal record. [16] Mr.

Yang’s common-law partner gave birth to their child on May 3, 2017. Since that date and as confirmed in a letter by Dr.Kwok-Sum Chan, Mr. Yang’s partner has had emotional difficulties. In the last page of Dr. Kwok-Sum Chan’s letter he writes: She felt she would be helpless if her partner is not around to give her support. She had thoughts of running away. She would beextremely vulnerable to get into postpartum depression and other consequences if her partner is not around. [17] While I have considered Dr. Kwok-Sum Chan’s letter, I note it fails to consider the assistance that Mr.

Yang’s family may bewilling to extend. As such, his prediction of vulnerability to postpartum depression has some ambiguity. [18] Several letters were written on behalf of Mr. Yang. Some of the letters are from family members who live in the Vancouverarea while others are from friends. All of the letters speak to Mr. Yang’s remorse and to his kind nature. They also mention how Mr.Yang helps his elderly parents. [19] I have concerns with the letter from Mr. Yang’s niece, Vincy Brown. In her letter she mentions Mr.

Yang immigrating toCanada and in this regard she stated, “…he wanted nothing more than to provide for his wife and parents.” The difficulty is Mr. Yangimmigrated to Canada in 1988 and he was not married until 2001, hence, the letter is misleading in that it suggests Mr. Yang was marriedwhen he immigrated. I also observe that Ms. Brown was 3 years old when Mr. Yang immigrated, as such, her observation, if accepted,were not of her own rather from some unidentified source. [20] A further difficulty with Ms. Brown’s letter is; she suggests Mr.

Yang became involved in the offences after his wife left himand this resulted in him associating with the wrong people. In contrast, the evidence at trial demonstrated that Mr. Yang was married atthe time of the offences and living with his wife. [21] Despite my concerns regarding Ms. Brown’s letter, I do accept what has been stated in the other letters.

LEGAL ANALYSIS Purpose and principles of sentencing [22] The intended purposes and objectives of any sentence imposed are set out in s. 718 of the Code: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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 and the harm done to victims or to the community that is caused by 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; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [23] The purpose behind a denunciatory is to communicate through the sentence imposed society’s condemnation for the offenderhaving violated societal rules as enshrined in the criminal law: R. v. C.A.M., (SCC), [1996] 1 SCR 500 81. [24] The concept of deterrence is founded on the principle that the sentence imposed will dissuade the offender or others forcommitting similar offences: R. v. B.W.P., 2006 SCC 27 , [2006] 1 SCR 941.

[25]

Section 10 of the CDSA also sets out sets out the purpose for sentences imposed under the Act. It also sets out certainaggravating factors which are not applicable to Mr. Yang’s circumstances. [26]

Section 718.1 of the Code sets out the fundamental principle of sentencing: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [27] Proportionality is a cardinal principle of sentencing. As such, the sentence imposed must reflect the seriousness of the criminalconduct, as well as, the degree of the offender’s moral culpability. The principle of proportionality and its importance was commentedon by Label J., in R. v.

Nasogaluak, [2010] 1 SCC 6, at paragraphs 41-42: [41] It is clear from these provisions that the principle of proportionality is central to the sentencing process (R. v. Solowan, 2008SCC 62 , [2008] 3 S.C.R. 309, at para. 12). This emphasis was not borne of the 1996 amendments to the Code but, rather,reflects its long history as a guiding principle in sentencing (e.g. R. v. Wilmott (1966), (ON CA), 58 D.L.R. (2d) 33(Ont. C.A.)). It has a constitutional dimension, in that s. 12 of the Charter forbids the imposition of a grossly disproportionate sentencethat would outrage society’s standards of decency.

But what does proportionality mean in the context of sentencing? [42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender andthe gravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protectiveangle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicialand social censure (J. V. Roberts and D. P.

Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense ofSentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’scondemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moralculpability, and not greater than it.

The two perspectives on proportionality thus converge in a sentence that both speaks out against theoffence and punishes the offender no more than is necessary. [28] Additional sentencing principles are found in s. 718.2 of the Code which reads: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [29] In considering the above, I am reminded: no one sentencing objective trumps the other, that sentencing is an individualizedexercise recognizing the unique characteristics of the offender and the offence, and that the principle of parity is secondary to thefundamental principle of proportionality: R. v. Lacasse, 2015 SCC 64 and R. v. Nasogaluak, [2010] SCC 6.

Sentences as per the Controlled Drugs and Substances Act [30] For the offence of producing MDMA, s. 7(1) of the Act provides that an offender is liable to imprisonment for life and to aminimum punishment of imprisonment for 2 years. [31] With respect to possessing MDMA for the purpose of trafficking, s. 5 (2) of the Act provides that an offender is liable toimprisonment for life. There is no mandatory minimum punishment. [32] As for possessing marihuana for the purpose of trafficking, s. 5 (2) of the Act provides that an offender who has a quantity ofmarihuana exceeding 3 kg. is liable to imprisonment for life.

There is no mandatory minimum. Primary sentencing objectives [33] Denunciation and deterrence are typically the primary sentencing objectives for drug offences where the offence involvesquantities of drugs that are greater than that associated with a street level transaction, and the offence was committed for profit: R. v.Pabla, [2013] BCSC 1588. [34] The relationship between greed and deterrence was commented on in R. v. Anderson, 2007 BCCA 581, where at paragraph 16the Court observed: [16] With respect, I think this argument rests on semantics. Greed is a pejorative term.

The gist of this factor is the entering into thebusiness for the profits to be made. Whether the motive is called greed or not, deterrence is an important sentencing factor in these casesbecause of the easy money provided by the illegal activity whatever may be the reasons behind the desire for that easy money.

[ 35 ] In the instant matter, the quantities of drugs involved, the circumstances of the offences, as well as the police surveillance lead me to conclude that the quantities involved were at the commercial level and that Mr. Yang’s motivation was profit. Of note, is the value of the powder MDMA seized was estimated to be approximately $219,900 and the value of the marihuana, if sold by the pound, was approximately $131,000. Given that Mr. Yang’s involvement was in the “commercial” realm and for profit, the sentence imposed must have the primary objectives of denunciation and deterrence.

Aggravating and mitigating circumstances [ 36 ] I find the risk associated to the production of MDMA within a residential neighbourhood to be aggravating. Such conduct places neighbours and possibly first responders, as well as, and those in Mr. Yang’s home at risk. These risks were the subject of comment by Madam Justice Gerow in R. v. Scott , [2006] BCSC 678 where at paragraph 8 she observed: [8] A large number of chemicals were found in the house. The chemicals found in the house posed significant dangers in that they create toxic and carcinogenic waste products, which are a potential risk to the community.

As well, the chemicals present a risk to firefighters and neighbours from toxic and corrosive gases in the event of a fire in the house. Although the chemical reaction which produces ecstasy is not particularly dangerous from the standpoint of explosions, corrosive or toxic gases can be released during the reaction. If some of the chemicals found in the house become unstable, they could be subject to fire and explosion. [ 37 ] The nature of the drug in the instant matter is also aggravating. In R. v.

Pabla, supra., at paragraph 37, Madam Justice Dickson observed and quoted as follows: [37] The case law is replete with descriptions of the dangers and harms inherent in Ecstasy use and production. For example, in R. v. Dam , 2010 BCPC 289 , Baird Ellan P.C.J. described those dangers by quoting from R. v. Scott , 2006 BCSC 678 , as follows: [13] Ecstasy is marketed in pill form at raves and bar scenes. The dangers inherent in that kind of accessibility are documented in the case law, notably R. v. Patrick , 2006 ABPC 124 (Alta. Prov. Ct.) and R. v. Scott , 2006 BCSC 678 (B.C.S.C.).

The established dangers in terms of health and side effects are stated more strongly in Patrick , and in my view are put more fairly by Gerow J. in Scott : [18] Expert testimony was that ecstasy is a widely used, recreational drug which targets teenagers and young adults. It can present significant health risks. [19] … Although not particularly addictive, dependence problems can develop. [20] … There can be perceptual distortions affecting taste, touch, auditory and colour senses. There is often attentional dysfunction and increased impulsive behaviour. . . .

Use of ecstasy can result in cognitive and attentional problems, including effects on the thermal regulation of the brain and body. Symptoms can include anxiety, excitability, fatigue and difficulty sleeping. Agitation and seizures can develop. The potential aftereffects of taking ecstasy are muscle restlessness, clenching of the jaw, grinding of the teeth, a sore back, headache and nausea. As well, some people develop depression. [21] Most people use ecstasy without any apparent ill effect.

Although on the whole ecstasy is not a drug where there is a high likelihood of serious medical effect or fatality, it can occur. Ecstasy can have an idiosyncratic effect where a person is metabolically predisposed. One of the problems with the use of ecstasy at raves is that it can interfere with the thermal regulatory centre in the brain. As a result there can be hyperthermia or excessive body heat. Associated with hyperthermia in the rave scene can be drinking excessive water to the point of water toxicity thereby upsetting the electrolyte system and causing death.

There is some evidence that ecstasy can damage nerves with chronic use. [22] The fact that the target group for ecstasy is young people exacerbates the effects associated with the brain chemistry and dependence. Ecstasy is generally more dangerous in teenagers and children because they are still actively growing. It is common to see dependence on the drug develop faster in youth than in adults. … [26] An argument was advanced that ecstasy is non-addictive and relatively innocuous, and therefore should not be viewed too sternly.

However, there is little evidence about the long term effects of ecstasy, and there is evidence that it can cause immediate harm to people who are metabolically predisposed. As well, there is a risk that the user does not know if he or she is consuming other drugs. It goes without saying that there is a lack of quality control in the production of ecstasy.

The fact that it is manufactured by untrained people in less than ideal conditions adds to the risk. [27] While I accept that there are more dangerous drugs, such as methamphetamine, the evidence before me is that ecstasy poses a health risk to the community. [ 38 ] It is also aggravating that Mr. Yang was involved in the drug trade for a long period of time. In other words, this was not a one off venture. A further aggravating factor is this was a commercial operation this finding is supported by: the quantities involved, the police surveillance, and the documents. [ 39 ] In mitigation, I observe Mr.

Yang does not have a criminal record, he pled guilty (after the voir dire ) and he has support in the community. Sentences imposed for similar offences [ 40 ] Counsel placed before the court a number of cases which assist in identifying a sentencing range. Despite this, the court is mindful that sentencing is an individualized exercise, and ranges are not inflexible boundaries. Cases Considered

[41] In R. v. Heathcote, [2016] BCSC 1246, the offender was convicted of a number of offences including possession of marihuanafor the purpose of trafficking and he was sentenced to 12 months imprisonment. The accused was found in possession 17 kg ofmarihuana divided into 71 Ziploc bags. The circumstances were, the marihuana was located within the context of a marihuana growoperation. The estimated value of the marihuana was between $63,000 and $322,000; depending on whether or not the marihuana wassold by the gram or the pound. The offender was 50 years old and in a stable relationship.

He had two adult children and positivereferences. He did not have a criminal record and he operated a construction business. [42] In R. v. Budd, 2010 BCCA 214, the offender’s appeal of a 12 month custodial sentence was dismissed. The offender wasconvicted of possessing marihuana for the purpose of trafficking, production of marihuana and trafficking in marihuana. Thecircumstances leading to the offender’s convictions were, he was stopped driving a truck containing 316 marihuana plants with a valueof $40,000, investigation linked the offender to a marihuana grow operation where 1139 grams of marihuana were found.

If sold at thegram level the value of the marihuana was between $5,000 and $8,000. The offender was 29 at the time of sentencing, he did not have acriminal record and he had a stable upbringing. The offender had experience working on a fishing boat; however, a down turn in theindustry resulted in him turning to the drug trade. [43] In R. v. Charalmbides, [2013] BCSC 1215, the offender received an 8 month custodial sentence after pleading guilty topossessing 20 pounds of marihuana for the purpose of trafficking. The value of the marihuana was $30,000 - $150,000.

The offenderwas 49 years old and in a common-law relationship. He had a child and he was employed as a welder and fabricator. The offender had adated criminal history. The Court found the offender’s guilty plea and the fact that he had a medicinal licence to possess marihuana asmitigating. [44] In R. v. Iverson, 2007 BCCA 3, the offender’s appeal from sentence was allowed and his sentence was reduced to 5 yearsconcurrent for each offence. The offender was convicted at trial of possessing methamphetamine and ecstasy for the purpose oftrafficking, and for producing methamphetamine and ecstasy.

The offender was 55 years old and a recovering heroin addict and he wasin a methadone program. The sentencing judge held that the offender played an integral role in the manufacturing process, that hisaddiction played a minor role in the offences and that his primary purpose was to make money. It was also noted that the offender wasnot desperate for cash and that the offender’s involvement was not brief, nor, impulsive. [45] In R. v.

Renaud, 2007 BCCA 526, the Crown appealed a 3 year sentence that was imposed on an offender who pled guilty toproducing methamphetamine and possessing of methamphetamine for the purpose of trafficking. The offender was arrested afterfirefighters responded to a report of smoke in an apartment. Investigation resulted in the discovery of a methamphetamine laboratorywherein 6.1 kilograms of methamphetamine was discovered. The offender was 26 years old, he had no criminal record and hedemonstrated remorse.

The appeal was dismissed and in doing so the Court observed that the offender was a youthful first time offenderwho the sentencing judge felt had good rehabilitative prospects. [46] In R. v. Scott, 2006 BCSC 678, the offender was sentenced to imprisonment for 4 years after he was convicted of offencesinvolving; the production of marihuana and ecstasy and the possession of marihuana and ecstasy for the purpose of trafficking. Theoffender was charged after the police discovered a clandestine lab, and a marihuana grow operation which was in a residence adjacent toa school and daycare.

Seized were approximately 2-3 ounces of ecstasy, raw materials, some crystalized ecstasy, and 24 marihuanaplants. Also located were materials supporting a finding that the offender’s involvement was sustained over a period of time. Theoffender was 29 at the time of the offence, he did not display remorse, he did not have a criminal record, he was employed and he hadsupport in the community.

In her reasons for sentence Madam Justice Gerow at paragraph 37 stated: [37] The cases involving production of ecstasy and other drugs in clandestine labs indicate that the appropriate range of sentence forthe offence of production of ecstasy is between two and more than five years depending on the size of the lab and the circumstances ofthe offender. The range of sentence for production of marijuana and possession of marijuana for the purposes of trafficking is betweensix months and two years less a day for a first time offender. [47] In R. v.

Pabla, 2013 BCSC 1588, the offender was sentenced to imprisonment for 2 years after he was convicted of conspiracyto produce MDMA and production of MDMA. The offender was charged after a long investigation which resulted in the execution of asearch warrant. During the search the police located 6.9 kilograms of MDMA, and 14.3 kilograms of controlled substances in thepowder form. The offender was almost 20 when he committed the offences, his involvement was akin to a worker, he did not have acriminal record, he had some mental health issues, he was employed by his father and he had support in the community.

In her reasonsfor sentence, Madam Justice Dickson observed at paragraph 46 that were it not for the offender’s youth, his mental health issues, hisremorse and his excellent prospects for rehabilitation that she would have imposed a lengthier term of imprisonment. [48] In R. v. Dam, 2010 BCPC 289 , 2010 BCPC 0289, the offender pled guilty to producing MDMA and he was sentencedto a conditional sentence order of 2 years less a day. The circumstances of the offence are: the offender was seen going to a rented agarage on several occasions. Neighbours became suspicious and notified the police.

A search of the garage resulted in the policefinding a pill press and surveillance resulted in the police arresting the offender. At the time of his arrest, the offender was in possessionof 109 grams of MDMA and material believed to be a cutting agent.

The offender was 25, he had one offence for impaired boating, hewas remorseful, and his involvement was minimal and in the judge’s words, “a piece worker, sort of a mechanic…” It was also held thatthe offender did not make money from his involvement and his reason for being involved was to support his mother who could not workbecause of injuries suffered in a car accident. [49] In R. v. Hernandez-Juarez, 2010 BCSC 1284, the offender pled guilty to; possession of MDMA for the purpose of traffickingand 2 counts of trafficking in MDMA. He was sentenced to 12 months concurrent on each count.

The circumstances of the offenceswere; the offender first sold to a police officer 12 pills, on a second occasion he sold 450 pills and when he was arrested he was inpossession of 1,782 pills. The offender was 23, he did not have a criminal record, he had one year of post-secondary education, he hadgood employment prospects and the support of his family. [50] In R. v. Egorov, 2006 BCPC 516 , 2006 BCPC 0516, the offender pled guilty to three counts of trafficking in ecstasyand methamphetamines. The offender was sentenced to imprisonment for two years less a day to be served conditionally in the

community. The circumstances of the offences were: the offender sold increasingly greater quantities of ecstasy to an undercover officer. The last transaction involved 15, 000 pills. The sentencing judge was satisfied that the offender did not control the quality of the pills and that he had little control of the transactions beyond simply providing the buyer to the seller. The offender was 22 years old, he did not have a criminal record, and he had good work prospects. POSITIONS OF THE PARTIES (

i) The Crown [ 51 ] The Crown argues that a fit sentence for the production of MDMA and possessing MDMA for the purpose of trafficking is 3 years, concurrent for each offence. In argument, the Crown highlights the following: Mr. Yang’s involvement, the nature of the laboratory, the duration of the operation, the size of the operation and that profit was the sole motive. [ 52 ] As for the offence of possessing marihuana for the purpose of trafficking, the Crown argues that an appropriate sentence is 2 years. In the circumstances the Crown urges the court to look at the quantity involved, and Mr.

Yang’s role. [ 53 ] The Crown argues all sentences should be concurrent to each other. The Crown is also seeking a DNA order and a weapons prohibition. (ii) The Defence [ 54 ] Counsel for Mr. Yang argues that a sentence of 2 years less a day would be fit and appropriate for the offences related to the MDMA and a 1 year sentence for possessing marihuana for the purpose of trafficking. Counsel does not oppose the ancillary orders sought by the Crown. [ 55 ] In support of counsel’s position they rely on the circumstances of the MDMA offences and argue that they support a conclusion that Mr.

Yang was a party to the offence by storing the materials that were seized. He also points to Mr. Yang’s background, his support and his personal circumstances. MANDATORY MINIMUM AND SENTENCE [ 56 ] A review of the authorities supports a finding that the range of sentence for the production of MDMA is 2 years less a day and up to 5 years. I note Mr. Yang’s involvement was greater than a pill press operator as was found in Pabla and Dam . I also note Mr.

Yang’s involvement was over a greater period of time. [ 57 ] In the circumstances and after considering all of the principles of sentencing including the aggravating and mitigating factors, I conclude that the mandatory minimum sentence would not impact the sentence to be imposed. In other words, I am satisfied that the mandatory minimum sentence of 2 years will not increase the sentence to be imposed in the circumstances. SENTENCES TO BE IMPOSED (

i) Production of MDMA [ 58 ] In my view the primary sentencing objectives are denunciation and deterrence. The facts of the instant matter make these objectives pressing for the following reasons: the operation was conducted for profit without any consideration for the neighbourhood or the end users of the MDMA. In other words, the pursuit of profit was placed before the safety of others. Furthermore, this was not an impulsive act; rather it was planned, deliberate and conducted over a period of time in circumstances where Mr.

Yang was more than just a worker. [ 59 ] I reject counsel’s submission that the evidence supports a conclusion that Mr. Yang had little involvement and was storing the items. I do so because the evidence before the court including, the surveillance, the fingerprints, how the chemicals were stored and the documents, in the absence of other evidence, leads to no other rational or reasonable conclusion.

As such, and after considering the aggravating and mitigating circumstances, I impose a custodial sentence of 30 months. (ii) Possession of MDMA for the purpose of trafficking [ 60 ] Our society is replete with horrific stories of young persons whose lives are forever altered because of misadventure associated with drug use. As such, the court has the responsibility of protecting the public by imposing a sentence that deters others denounces the conduct. Accordingly, and after considering all of the facts and circumstances, Mr.

Yang is sentenced to imprisonment for a period of 30 months. (iii) Possession of marihuana for the purpose of trafficking [ 61 ] I find the primary objectives of the sentence imposed to be denunciation and deterrence. After considering all of the factors and given the similarities to Heathcote , supra , I am satisfied that a fit and appropriate sentence is a custodial sentence of 1 year. (iv) Totality principle [ 62 ] In my view, imposing consecutive sentences for the MDMA and the marihuana offences would offend the totality principle as set out in R. v. M.(C.A.) , [1996] 1 SCR 50 .

As such and despite the MDMA offences being distinct act, all sentences will be concurrent to each other. ANCILLARY ORDERS (

i) DNA

[ 63 ] Pursuant to s. 487.051 (3) of the Code, the Crown seeks an order requiring Mr. Yang to provide a sample of his DNA. Before making a DNA order this court must be satisfied that such an order is in the best interests of the administration of justice. In making my decision, I must consider the following: Mr. Yang’s criminal record, the nature of the offences concerned, the circumstances surrounding the commission of the offences and the impact that such an order would have on Mr. Yang’s privacy and the security of his person. [ 64 ] Considering the above factors, I note Mr.

Yang does not have a criminal record, that he pled guilty to serious drug offences wherein his involvement was planned over a period of time and motivated by greed. As to the impact that an order would have on Mr. Yang’s privacy and security of his person, I observe that the taking of a DNA sample is minimally intrusive and that the results of the sample are protected by statue. As such and after careful consideration, I find on a balance that making a DNA order is in the best interests of the administration of justice. Accordingly, I make and order in Form 5.04 that Mr.

Yang provide a sample of his DNA. (ii) Weapons prohibition [ 65 ] Pursuant to s. 109 of the Code, Mr. Yang is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for a period of ten years. (iii) Victim fine surcharge [ 66 ] The victim fine surcharge is payable on or before October 6, 2020. _____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia