R. v. Lam, 2012 BCPC 488

Citation: R. v. Lam, Kuang, Ma Date: 20121210 2012 BCPC 0488 File No: 32253-C-2 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KAM HUB LAM CHUN JIE KUANG GUO HAU MA REASONS FOR SENTENCE (Re: The Accused Kuang and Ma) OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Counsel for the Crown: M. Knowlan Counsel for the Defendant Kuang: J. LeBlond Counsel for the Defendant Ma: J. Desbarats Place of Hearing: Prince George , B.C.

Date of Hearing: October 17, 2012 Date of Judgment: December 10, 2012 INTRODUCTION [ 1 ] The Defendants, Chun Jie Kuang (Mr. Kuang) and Guo Hua Ma (Mr. Ma) (collectively, the Defendants) each pleaded guilty to Count 1 on Information 32253-C2, production of marijuana contrary to Section 7(1) of the Controlled Drug and Substances Act (the CDSA ) . [ 2 ] Counsel for the Public Prosecution Service of Canada (the Crown) seeks the following for each of the Defendants:

a) a sentence of between 18 months and 2 years less a day to be served in a provincial prison;

b) a 10 year firearms prohibition pursuant to

Section 109 of the Criminal Code of Canada (the Code );

c) a DNA order pursuant to

Section 487.04 of the Code ;

d) a forfeiture order regarding the items seized during the execution of the search warrant pursuant to

Section 490.1 of the Code and

Section 16 of the CDSA . [ 3 ] Counsel for the Defendants do not oppose the ancillary orders sought by the Crown or the proposed length of the sentence but they submit that the Defendants should be permitted to serve their sentences in the community under a Conditional Sentence Order. [ 4 ] The co-accused, Kam Hub Lam (Mr. Lam) was sentenced in a separate proceeding to an effective sentence of three years in a federal penitentiary. THE LAW Statutes [ 5 ]

Section 7 of the CDSA states in part: 7(1) Except as authorized under the regulations, no person shall produce a substance included in

Schedule I, II, III, or IV.

(2) Everyone who contravenes subsection (1) (

b) Where the subject-matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for term not exceeding seven years. [ 6 ]

Section 718 of the Code states: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

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 and to the community. [ 7 ]

Section 718.1 of the Code states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 8 ]

Section 718.2 of the Code states in part: 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 theoffence or the offender, .... (

b) a sentence should be similar to sentences imposed on similar offenders for a 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,with particular attention to the circumstances of aboriginal offenders. Case Law Crown [9] The Crown relied on the following cases in submissions:

a) R. v. Lam unreported Prince George Registry No. 32253-2-C March 7, 2012

b) R. v. Vo 2011 BCPC 321 , 2011 BCPC 0321

c) R. v. Chiu 2010 BCPC 42 , 2010 BCPC 0042

d) R. v. Noun and Om 2008 BCSC 644

e) R. v. Koenders 2007 BCCA 378

f) R. v. Hill 2007 BCCA 309

g) R. v. Shokar 2006 BCSC 1088

h) R. v. Lee 2004 BCPC 557 , 2004 BCPC 0557 [10] Defence counsel jointly relied on the following cases in submissions:

a) R. v. Jones 2012 BCSC 816

b) R. v. Nguyen 2011 BCSC 1596

c) R. v. Howitt 2010 BCSC 1475

d) R. v. Tansichuk 2007 BCSC 1028

e) R. v. Gan 2007 BCCA 59

f) R. v. Shaw 2005 BCCA 380

g) R. v. Shah and Kokak 2003 BCCA 294

h) R. v. Whyte 2002 BCCA 293

i) R. v. McLennan and Munro 2001 BCCA 229 [11] In addition, counsel for Mr. Kuang also relied on R. v. Lau 2011 BCPC 215 , 2011 BCPC 0215. [12] The decisions referred to by counsel in turn referred to other potentially applicable cases, including in many instances, the factsand dispositions in those cases. These included:

a) R. v. Huon 2010 BCCA 143

b) R. v. Giang 2010 BCSC 1016

c) R. v. van Kessel 2010 BCSC 257

d) R. v. Vo 2009 BCCA 471

e) R. v. Harrison 2009 BCSC 499

f) R. v. Redhead 2008 BCCA 532

g) R. v. DiPalma 2008 BCCA 342

h) R. v. Le 2008 BCSC 1730

i) R. v. Anderson 2007 BCCA 581

j) R. v. Wallis 2007 BCCA 377

k) R. v. Heidarian 2007 BCCA 288

l) R. v. Aslam 2007 BCCA 122

m) R. v. Gan 2007 BCCA 59

n) R. v. van Santvoord 2007 BCCA 23

o) R. v. Hoang 2007 BCSC 984

p) R. v. Farewell 2007 BCSC 160

q) R. v. Chung 2006 BCPC 293

r) R. v. Wu 2006 BCPC 164 , 2006 BCPC 0164

s) R. v. Zhou 2006 BCPC 61 , 2006 BCPC 0061

t) R. v. Q.A.M. 2005 BCCA 615

u) R. v. Godwin 2005 BCCA 477

v) R. v. Krunic 2005 BCCA 312

w) R. v. Tran 2005 BCCA 258

x) R. v. Teleske 2005 BCPC 33 , 2005 BCPC 0033

y) R. v. Copeland 2004 BCCA 442

z) R. v. Hornby 2003 BCCA 635 aa) R. v. Vu 2003 BCCA 339 bb) R. v. Lister 2003 BCCA 269 cc) R. v. Pow 2003 BCSC 424 dd) R. v. Nguyen 2002 BCCA 686 ee) R. v. Dean 2002 BCSC 568 ff) R. v. Karlsen 2002 BCSC 469 gg) R. v. Trinh 2001 BCCA 677 hh) R. v. Tran 2001 BCCA 503 ii) R. v. Innes 2001 BCCA 478 jj) R. v. Oanh Nguyen 2001 BCCA 461 kk) R. v. Neubert 2001 BCCA 371 ll) R. v. Peterson 2001 BCSC 857 mm) R. v. Sidney 2000 BCCA 593 nn) R. v. Su 2000 BCCA 480 oo) R. v. Brass 2000 BCSC 988 pp) R. v. LaPointe 1999 BCCA 352 qq) R. v. Sorrentino [1999] B.C.J. No. 3152 (BCSC) [13] The cases reviewed by the Court also referred to the following cases on the following topics:

a) R. v. Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61 (Conditional Sentences)

b) R. v. Nasogaluak 2010 SCC 6 and

c) R. v. Wust 2000 SCC 18 , [2000] 1 S.C.R. 455 (Sentencing Objectives),

d) R. v. Howitt 2010 BCSC 1475,

e) R. v. Aitkens 2004 BCCA 411 and

f) R. v. Chang 2002 BCCA 644 (Judicial notice of the community harm of marijuana production and drugs). NEW LEGISLATION [14] In its submissions the Crown also referred the Court to the recent amendments to the penalties for production of marijuanawhich require a minimum sentence of three years in a federal penitentiary when the number of plants produced exceeds 500. Thislegislation came into effect on November 6, 2012. In the future, a Conditional Sentence Order will not be available for the offence theDefendants have pleaded guilty to.

CIRCUMSTANCES OF THE OFFENCE [15] On January 25, 2011, after extensive surveillance lasting over six months, the Royal Canadian Mounted Police (RCMP)executed a Search Warrant at 18876 Westwood Road, Vanderhoof, British Columbia (the Property) and arrested the three co accused. [16] The Property was a quarter

section farm located approximately 20 kilometers from Vanderhoof. It contained a main residenceand several nearby outbuildings associated with farming. When the Search Warrant was executed a search of the residence indicatedthat it had been occupied for some time by several people residing there on a daily basis. There was no sign of any legitimateagricultural activity taking place. [17] Approximately 150 meters from the main residence were two buildings clad in plywood with metal roofs.

The larger of the twowas approximately 70 meters long, 20 meters wide and 4 meters high and was purpose built to house a marijuana grow operation. It wasdivided into four separate sections to accommodate an electrical/ water fertilization preparation room and three grow rooms.

Theelectrical room was professionally wired to accommodate the power from a diesel generator and to distribute that power to the variousapparatus in the three grow rooms. [18] The smaller of the two buildings was approximately 25 meters long and 10 meters wide and housed a large industrial generatorand diesel fuel tanks to supply the necessary electricity for the grow operation. [19] At the time of the Search Warrant the following items were seized from various locations in the two buildings: a) 2629 healthy marijuana plants in various stages of vegetative growth; b) 220 high intensity 1000 watt high-pressure sodium lights with shrouds; c) 204 electrical ballasts connected to three large electrical breakers;

d) approximately 20 barrels of fertilizer/water mixture, hosing and hand watering apparatus;

e) numerous blower fans and oscillating fans;

f) several respirators and work clothing;

g) trolleys to transport plants from room to room;

h) a monthly calendar dating back to May 2010;

i) a large industrial generator and diesel fuel tanks. [20] There were no automatic timers for the lighting system and the plants were in pots and watered by hand. Given the nature ofthe set up it was capable of producing up to three crops per year. [21] The Property was owned by a limited company and was purchased on September 25, 2009 for $378,888.00. The company’ssole director was listed as Hai Yan Ma with an address of 595 E. 48th Avenue, Vancouver, British Columbia.

That address was alsogiven by the Defendant Ma at the time the Search Warrant was executed. [22] The construction of the grow operation buildings and the wiring of same could conservatively be estimated in the tens ofthousands of dollars. The diesel generator, if purchased new, would cost $100,000.00.

The grow operation was a highly capitalized,professionally installed commercial operation but not as automated as some. [23] Given the number of plants seized the estimated crop was 492 pounds of marijuana bud valued at close to $1 million if sold inpounds, $1.6 to $2.4 million if sold in ounces and $2.2 to $4.5 million if sold in grams. This would amount to $3.0 million per year in

wholesale production and up to $13.5 million per year in street level sales. CIRCUMSTANCES OF THE DEFENDANTS [ 24 ] The personal circumstances of each of the Defendants were obtained from the Pre-Sentence Report and the submissions of Defence counsel. [ 25 ] Mr. Ma is 32 and lived with his family until 2003 when they immigrated to Canada. He is now a Canadian citizen. His parents are both employed and he has one younger brother. [ 26 ] He is said to be in good health and does not suffer from any addictions. [ 27 ] He has held previous employment as a truck driver and now works as a stone mason.

That employment requires long hours of work during the construction season and he is learning a new trade. [ 28 ] Mr. Ma resides in a relationship with a woman who works in a travel agency. They are considering marriage and children but have delayed those plans pending the outcome of this case. [ 29 ] Seven letters of support from his spouse, his mother, several family members and co-workers were submitted on behalf of Mr. Ma. All of those letters described Mr.

Ma in very positive terms as a good, respectful and loving person who made a serious error for which he has deep regret, remorse and shame and that he is striving to maintain himself as a law-abiding citizen. There is also indication in the letters that his parents are in poor health and rely on him for assistance. [ 30 ] Mr. Kuang is 33 and lived in China until he immigrated to Canada in 2009. He is a landed immigrant. His parents and his younger sibling continue to reside in China.

He was married in 2004 and divorced in early 2012. [ 31 ] He has some medical challenges due to a motor vehicle injury but does not suffer from any addictions. [ 32 ] He was previously employed at a restaurant and in a recycling business and now is employed as a fry cook at a restaurant. His employer provided a letter confirming his employment and his value to their operation. That employment is available to him to continue in the event he is not incarcerated. [ 33 ] Letters of support for Mr. Kuang were submitted by his employment supervisor and his roommate.

Those letters indicate that he is a hard-working well behaved person and that prior to this offence was a law-abiding citizen both in China and in Canada. STATEMENTS BY THE DEFENDANTS [ 34 ] When provided with the opportunity, each of the Defendants made a statement to the Court with the assistance of an interpreter. [ 35 ] Mr. Ma stated that he recognizes he had broken the law and that he hurt his family and his girlfriend. He has spent the past two years working very hard to show that he is a better person. He understands that the crime he has committed is serious and wants a chance. [ 36 ] Mr.

Kuang said he recognized that he had committed a serious offence and that he really regretted what he had done and the impact it has on society. Since he has been granted bail, he has continued working although awaiting sentencing is very stressful. He has advised his employer that if he is sent to jail he will resign from his position. SUBMISSIONS Crown [ 37 ] In the Crown’s submission there is only one mitigating factor in this case; the Defendants’ pleaded guilty. [ 38 ] In contrast, the Crown submits there are numerous aggravating factors that the Court should consider including:

a) the grow operation was a premeditated, long-term, criminal enterprise that the Defendants made a conscious decision to take

part in;

b) the grow operation was an extremely large, sophisticated, commercial scale enterprise capable of generating massive illegal profits from which the Defendants were intending to personally financially benefit;

c) the Defendants were not driven by addiction or medical reasons in their decision to participate in the offence;

d) although the Defendants were not principals in the operation, they were parties without whom such an operation could not have been a viable venture. Their moral and legal culpability is high;

e) both Defendants moved to Vanderhoof from the Lower Mainland for the express purpose of participating in the grow operation.

f) the increasing prevalence of commercial marijuana grow operations in the rural areas of northern British Columbia have a detrimental effect upon small communities by attracting other illegal activities with dangerous consequences. This has been the subject of extensive judicial comment. Defendant Ma

[ 39 ] Defence counsel for Mr. Ma proposes a Conditional Sentence Order for a lengthy period of time with house arrest for an initial lengthy period followed by a strict curfew. In the alternative, if there is to be a jail sentence it should be for no longer than one year. [ 40 ] Defence counsel submits that none of the aggravating factors listed in

section 718.2 of the Code are present in this case. [ 41 ] Defence counsel maintains there are a number of mitigating factors relating to Mr. Ma including:

a) he has no criminal record;

b) he entered a guilty plea and indicated his remorse;

c) he has made strong efforts at rehabilitation;

d) he has not committed any further offences or breached his strict bail conditions;

e) he was under financial pressure immediately prior to the offence;

f) he has presented evidence of a previous and present good character in the form of support letters;

g) he has made great strides towards his rehabilitation by maintaining gainful employment which has provided financial stability;

h) he is residing in a stable relationship and planning a family. [ 42 ] Defence counsel also submits that Mr. Ma's role in the grow operation and his motivation for becoming involved are circumstances which reduces the importance of general deterrence in the sentencing process. He was not a principal or operating mind but had minimal involvement as a mere gardener. Defendant Kuang [ 43 ] Defence counsel for Mr. Kuang proposes a Conditional Sentence Order of two years less one day with house arrest for all or part of it. He also points out that if a sentence of greater than two years is imposed on Mr.

Kuang, his deportation is a possibility because he is not a citizen. [ 44 ] Defence counsel for Mr. Kuang began his submissions by pointing out the errors and inadequacies of the very brief Pre- Sentence Report. [ 45 ] With regard to Mr. Kuang's involvement in the grow operation and in answer to the Crown submissions, Defence counsel’s submissions can be summarized as follows:

a) he was in some financial difficulty when approached to travel to a job in Vanderhoof to perform cooking, cleaning and laundry services for a salary but he received no monies before he was arrested;

b) he was at the grow operation for approximately three months before the Search Warrant was executed but for the first six weeks had nothing to do with the grow operation because he was performing the duties he was hired for;

c) he was aware growing marijuana was illegal but felt compelled to assist in order to obtain his wages for the cooking, cleaning and laundry services he was providing. He didn't intend to become involved but had few options once he arrived;

d) he was unable to leave because he had no vehicle and did not know exactly where he was. The location of the property and the fact that he would be participating in a grow operation was a secret;

e) he did not participate in any of the premeditation or planning of the grow operation. Nor was he involved in its financing or construction;

f) he was relieved when he was arrested and since his release on bail he has lived a very quiet and closed existence because of the shame and remorse he feels. He acknowledges that marijuana is illegal for good reason because it is addictive and its use can hurt one's health;

g) his performance on bail for the past 18 months bodes well for him fully complying any terms of the Conditional Sentence Order that may be imposed upon him.

DISCUSSION Case Review [ 46 ] If one totals all of the cases referred to by counsel and the cases further referred to in detail within those cases, the Court is left to consider over 60 cases on the various factual and legal issues to be analyzed in order to fix an appropriate and just sentence for the Defendants. [ 47 ] Even a cursory review of those cases makes it clear that there is a wide range of sentences capable of being imposed on offenders involved in marijuana grow operations. As Madam Justice Southin said in paragraph 10 of McLennan and Munro :

[10] There are so many differing sentences for marijuana offences in the province that it cannot be said that there is any common judicial opinion as to what is the right thing to do. [ 48 ] A similar view was expressed by Mr. Justice Joyce in Shokar when he said at paragraph 18 : [18] Crown counsel provided me with a number of authorities dealing with sentencing for production of marijuana in the case of first- time offenders.

For me at least, it is not easy to discern from these authorities, and others that I have reviewed, what is the range of sentence for first-time offenders in these kinds of cases, and when a conditional sentence may be appropriate.... [ 49 ] In Lee, Chiu, Howitt and Nguyen, Judges Bayliff and Morgan and Justices Harris and Joyce each reviewed the law and arrived at a series of principles and factors to be considered in sentencing offenders involved in marijuana grow operations. A review of their thoughts on the subject can be summarized as follows: 1.

The Court must consider all available sanctions other than prison. If the sentence is to be less than two years, the Court must first consider a Conditional Sentence and impose prison only if it concludes a Conditional Sentence is not appropriate in light of the provisions of

section 742.1, sections 718 through 718.2.and the case law. There is no presumption for or against a conditional sentence in marijuana production cases. 2. Sentencing is an individualized process which requires the Court to consider the nature of the offence, the degree of responsibility of the offender, the offender’s circumstances and any other relevant factors in crafting a just and appropriate sentence. The Court must not place either too much or too little emphasis on any of the sentencing factors in determining the sentence. 3.

Denunciation and deterrence are important sentencing principles with regard to offences involving the production of marijuana. 4. A Conditional Sentence may have significant denunciatory and deterrent effects; particularly if it has strict conditions. 5. The Court cannot dismiss a Conditional Sentence simply because the grow operation is large and/or sophisticated or highly capitalized. However, the commercial nature of an operation, particularly one involving an excess of 500 plants, can be taken into account by the Court in weighing the sentencing objectives of denunciation and deterrence. 6.

The Court may take judicial notice of the significant and lucrative marijuana production industry in British Columbia and the negative impact those crimes have on local communities. 7. Factors such as whether or not there has been an electrical power bypass and whether the operation is in a residential or rural area may have an influence on the type of sentence to be considered. 8. If the Defendant is only a "gardener" and has no prior record, and has demonstrated capacity for rehabilitation, a Conditional Sentence is more generally available. 9.

If the Defendant is a principal operator, is involved a substantial way in establishment and operation of the grow operation or has previous convictions for similar offences, a Conditional Sentence will not usually be appropriate unless the Court determines there are compelling mitigating circumstances regarding the offender's situation. 10.

A Conditional Sentence may not adequately address general deterrence in circumstances where there is a large commercial operation at a particular time and in a particular location even after due consideration is given to the fact that the Defendant is a first-time offender, not a principal operator but rather a "gardener" and shows a demonstrated capacity for rehabilitation. Mr. Lam [ 50 ] Mr. Lam, the other co accused was sentenced by Judge O'Byrne on March 7, 2012, to a three-year penitentiary sentence. [ 51 ] In his sentencing reasons Judge O'Byrne noted the following aggravating factors:

a) Mr. Lam was on a Conditional Sentence Order for a similar offence at the time of his arrest;

b) the grow operation was of a large commercial size and sophisticated in nature;

c) Mr. Lam travelled from the Lower Mainland to Vanderhoof in order to participate;

d) Whether he was a principal, a gardener or a repair man he was still a party and equally liable; and the following as mitigating factors;

e) there was no electrical power bypass or firearms present;

f) by pleading guilty Mr. Lam eliminated the need for a trial of up to 15 days in length requiring an interpreter;

g) Mr. Lam had numerous job skills and family support;

h) Mr. Lam was sincerely remorseful. [ 52 ] However, in the end Judge O'Byrne determined that a Conditional Sentence Order was not a consideration given Mr. Lam’s previous conviction for a similar offence, the commercial size of the operation and the need to apply the principle of general deterrence in order to stop people from coming from the Lower Mainland to the central part of British Columbia to commit these sorts of offences. Sentencing Principles [ 53 ] Based on the sentence given to Mr. Lam and taking into account sections 718.1 and 718.2 (

b) it would initially appear that Mr. Kuang and Mr. Ma should be subjected to a similar period of incarceration in a federal penitentiary. [ 54 ] However, the Crown is not seeking such a sentence but rather is seeking a sentence of less than two years incarceration in a provincial prison. By virtue of that type of sentence being sought, the Court is automatically required to give consideration to a Conditional Sentence Order as described in

section 742.1. In addition, neither Mr. Kuang nor Mr. Ma has any criminal record whatsoever. Both of these factors distinguishes their circumstances somewhat from that of Mr. Lam. [ 55 ] The numerous cases reviewed provide limited guidance on the issue of the type of sentence to be imposed in this case given the wide variety of approaches and the specific circumstances of the offences and accused in those other cases. [ 56 ] In examining the ten sentencing factors often considered as set out above, the following can be said about Mr.

Kuang and Mr Ma. [ 57 ] In considering the objectives of deterrence and denunciation in the context of a Conditional Sentence Order, Mr. Justice Harris (as he was then) commented in paragraph 47 of Howitt: [47] A conditional sentence which is longer than the jail term I would otherwise impose and which includes strict conditions restricting his liberty can, I am satisfied fulfil the sentencing objectives of denunciation and deterrence....A conditional sentence will assist in achieving those objectives by enabling Mr.

Howitt to maintain productive and legitimate employment while serving his sentence. [ 58 ] Based on the facts of this case and the cases reviewed if there is to be a sentence to be served in a provincial prison a range of 12 to 15 months would be just and appropriate. [ 59 ] The submissions of Defence counsel that the grow operation was not sophisticated adopts a too narrow view of that term. Someone financed a substantial self powered, purpose built facility designed for the efficient production of very large commercial crops of marijuana.

The lack of timers and watering systems could well have been the result of being able to procure labour to tend to those elements at a cost less than the capital cost for such equipment. [ 60 ] Marijuana production and the resulting criminal activity has an overall corrosive effect on the greater community of British Columbia but there was no evidence presented to suggest any of the crop from this operation was destined for the streets of Vanderhoof or the surrounding communities.

The funding came from a limited company with offices in the Lower Mainland, the workers came from the Lower Mainland and with a crop of this size under production, it was destined for a market much bigger than the Nechako Valley. [ 61 ] It is clear that the Defendants were not the principals of the operation. They were gardeners and in the case of Mr. Kuang, the cook.

There is no evidence that the Defendants were destined to profit greatly from the operation although there is no doubt that due to their previous financial difficulties and their participation they were anticipating generous compensation. [ 62 ] Both of the Defendants, through the interpreter expressed their shame, remorse and determination not to participate in further criminal activity. Although in some circumstances a true reading of a person can lose something in translation the feelings expressed seemed genuine.

They also accord with the sentiments set out in the letters of support. [ 63 ] After reviewing the circumstances of the offence, the circumstances of Mr. Kuang and Mr. Ma, the statute and the case law particularly the cases of Lee, Chiu, Howitt and Nguyen and the ten sentencing factors summarized from those cases and the sentencing decision of Judge O'Byrne concerning Mr. Lam, a lengthy Conditional Sentence Order as opposed to a sentence served in a provincial prison is an appropriate and just sentence for both Defendants.

They should consider themselves extremely lucky that their involvement in such criminal behaviour occurred when it did because if it had occurred today they would be facing a minimum term of three years in a federal penitentiary. DECISION Ancillary Orders [ 64 ] As part of the sentence, the Crown has sought various ancillary orders. [ 65 ] Count 1 is a primary designated DNA offence.

Pursuant to s. 487.051(1) of the Criminal Code , I make an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from each of Chun Jie Kuang and Guo Hua Ma by December 21, 2012. [ 66 ] Pursuant to s. 487.051(4) of the Criminal Code I further make an order in Form 5.041 that Chun Jie Kuang and Guo Hua Ma shall each attend on or before December 21, 2012 between the hours of 9:00 A.

M. and 4:00 P.M. at the Royal Canadian Mounted Police Detachment, at 1411 No. 5 Road, Richmond B.C., V7A 4E8 and submit to the taking of the samples.

[ 67 ] Count 1 attracts a mandatory ten year firearms prohibition pursuant to s. 109 of the Code . Chun Jie Kuang and Guo Hua Ma are each prohibited from possessing:

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years; and

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 68 ] There will a forfeiture order for all of the offence related property seized pursuant to s. 490.1 of the Code and s. 16 of the CDSA in the terms of an order drafted by the Crown, agreed to by Defence counsel and to be approved by the Court. SENTENCE [ 69 ] Mr. Kuang and Mr. Ma shall each serve a Conditional Sentence Order of two years less one day in the community with the following terms and conditions: (

a) You shall keep the peace and be of good behaviour; (

b) You shall appear before the court when required to do so by the court; (

c) You shall report in person to a Conditional Sentence Supervisor no later than 4:00 pm on December 10, 2012 at the Probation Office at 275 East Cordova Street, Vancouver, British Columbia, and you shall thereafter report as and when directed by the Supervisor and in the manner directed by the Supervisor; (

d) You shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the Supervisor; (

e) You shall notify the court or the Supervisor in advance of any change of name, or address, and promptly notify the court or the Supervisor of any change of employment or occupation; (

f) After you first reporting to the Supervisor further reporting may include reporting by telephone, at the discretion of the Supervisor; (

g) When first reporting to the Supervisor you shall inform him/her of your present residential address and phone number, and you shall not change your address or phone number at any time without first obtaining the written consent of the Supervisor; (

h) For the first 12 months of your sentence, you are to remain within your residence (or on the lot on which your residence is located) at all times, except as follows:

a) between the hours of 11:00 am and 2:00 pm each day, in order to attend to your personal business;

b) at any time with the written consent of the Supervisor obtained in advance. Such consent is to be given only for compelling personal, family or employment reasons ;

c) when traveling directly to, or returning directly from, your place of employment, or while in the course of your employment. You shall provide the Supervisor with written proof of employment;

d) in the event of a medical emergency and then only when traveling directly to or returning directly from a hospital emergency ward. (

i) For the remainder of your sentence you shall obey a curfew by being inside of your residence (or on the lot on which your residence is located) between the hours of 10:00 p.m. and 5:00 a.m. each day, except as follows:

a) with the written consent of the Supervisor obtained in advance. Such consent is to be given only for compelling personal, family or employment reasons;

b) when traveling directly to, or returning directly from, your place of employment, or while in the course of your employment. You shall provide the Supervisor with written proof of employment;

c) in the event of a medical emergency and then only when traveling directly to or returning directly from a hospital emergency ward. (

j) You shall present yourself at the door to your residence when any Peace Officer or Supervisor attends there for the purpose of determining your compliance with the curfew and house arrest conditions of this Order. (

k) You shall respond personally and immediately to the telephone when a Peace Officer or Supervisor makes a telephone call to your residence for the purpose of determining your compliance with the curfew and house arrest conditions of this Order. (

l) You shall not possess or consume any alcohol or any controlled substance within the meaning of

Section 2 of the Controlled

Drugs and Substances Act , except as prescribed for you by a physician. (

m) You shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premises from which minors are excluded by the terms of their liquor license. (

n) You shall write a letter of apology directed to the citizens of the Nechako Valley to the satisfaction of the Supervisor no later than February 28, 2013. That letter shall be forwarded to the editor of the Omineca Express at Post Office Box 1007, Vanderhoof, British Columbia, V0J 3A0 with a request that it be published.

In that letter you will describe your personal history as immigrants to Canada, detail the nature of your criminal activity in the grow operation, describe your understanding of the dangers of marijuana production, set out the sentence you have received, detail your remorse for participating in such criminal behaviour and describe the steps you plan to take to ensure that you are a productive and law-abiding member of Canadian society. (

o) You must carry a copy of this Conditional Sentence Order with you at all times when you are in public. If you are stopped by a Peace Officer for any reason you shall immediately provide the Peace Officer with a copy of this document without being requested to do so. [ 70 ] In addition, each of Mr. Kuang and Mr. Ma will be required to pay a fine to provide a regular reminder to them and others that they have received the benefit of being able to serve their prison time in the community. The fine for each Defendant will be $2,000.00 plus the Victim of Crime surcharge of $300.00 for a total of $2,300.00.

It will be payable at a rate of at least $100.00 per month commencing on December 31, 2012, and payable on the last day of each month until the full amount of the fine has been paid. _____________________________ M. J. Brecknell Associate Chief Judge Provincial Court of British Columbia