R. v. Xu, 2022 BCPC 83

Citation: R. v. Xu 2022 BCPC 83 Date: 20220420 File No: 67601-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHANG YU XU ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D.H. SILVERMAN Counsel for the Crown: C. Tait Counsel for the Defendant: D. Milburn Place of Hearing: Chilliwack , B.C. Date of Hearing: July 29, 2021, February 23, 2022 Date of Judgment: April 20, 2022 INTRODUCTION

[ 1 ] Chang Yu Xu was convicted at trial of production of marihuana and possession of marihuana for the purposes of trafficking. He is now before me for sentencing. [ 2 ] The Crown seeks a sentence of 18 to 24 months jail, along with three ancillary orders which are not opposed. [ 3 ] Counsel on behalf of Mr. Xu seeks a conditional sentence of 18 months. While the Crown accepts that the current state of the law allows for such a sentence, it nevertheless opposes its application here. [ 4 ] From the evidence heard at trial I found that Mr.

Xu was guilty of possession of marihuana for the purposes of trafficking, as well as production of marihuana on a commercial scale at 10625 Gillanders Road in Chilliwack. This is a rural property with a residence and large greenhouse. When police executed a search warrant on March 14, 2017 they found 3,209 marihuana plants in various stages of growth. Most were found in the greenhouse. Some were found inside the nearby residence. Several large bags containing dried marihuana were also found inside the greenhouse. [ 5 ] Expert evidence pegged the value of the operation at between $191,000 and $575,000.

It was capable of producing three to four crops per year, with revenues of $570,000 to $2,300,000 annually. [ 6 ] Based on the evidence heard at trial, Mr. Xu owned the property for less than a year. It is unknown how many if any “crops” he produced, other than what was found by police when the search warrant was executed. [ 7 ] Mr. Xu was registered on title as the owner of the property. When police entered the location on March 14, 2017 they observed Mr. Xu and his co-accused, who I found not guilty, in the green house. Two more people were found in the residence on the property.

This structure was quite Spartan inside, with several mattresses on the floor and one bedroom that contained CCTV equipment. [ 8 ] Police also found a number of personal use production licences inside the residence and taped to a sliding panel inside the greenhouse. They were in the names of third parties and permitted the growing of marihuana for medical use, but not for the Gillanders Road address. Some of the documents seized inside the residence demonstrated an attempt to move the location of the permitted growing to the Gillanders Road address.

None succeeded in doing so, and it was evident from those documents that the required process for such a change had not been followed. [ 9 ] Mr. Xu testified in his own defence. While ordinarily residing in Ontario he claimed he purchased the property for investment purposes, hoping to use it to produce strawberries. He testified that eventually he was introduced to an individual who wanted to rent the property from him to grow marihuana. He maintained that he was led to believe this person could do so legally. [ 10 ] Generally, I found Mr. Xu to not be credible.

I did not accept, nor could I find his assertion of mistake capable of raising a reasonable doubt. His account of how he acquired and financed the property was not believable, and did not raise a reasonable doubt. Moreover, I found his claim of mistake in these circumstances to be one of law and would not have afforded him a defence in any event. [ 11 ] On the evidence before me I also found that it was more likely Mr. Xu was the owner of the property in name only, and that the operating minds behind the scheme exploited his lack of sophistication to their advantage. ANTECEDENTS [ 12 ] Mr. Xu is 48 years old.

Originally, from China, he immigrated to Canada in 1995 and acquired Canadian citizenship in 2011. Mr. Xu and his wife married in 2003. The couple has four children who range in age from three to 17 years. The family resides in Ontario. Both Mr. Xu’s wife and his children are financially dependent on him. [ 13 ] Mr. Xu had worked in the restaurant industry until the start of the COVID pandemic. At that time he became unemployed, and other than some brief, temporary employment at a clothing manufacturer, he has not worked since. He expects, however, to return to work shortly. [ 14 ] Mr.

Xu has an interest in a factory in China. He testified at trial that he would receive payments from this business of up to $200,000 annually. However, since the pandemic the business has not been profitable. [ 15 ] Mr. Xu suffers from diabetes and high blood pressure. A letter and test results from his doctor have been entered as exhibits in these proceedings. The results of the tests are concerning to the doctor. It is clear that Mr. Xu must take medications regularly and make some lifestyle changes to ensure the disease and condition do not cause adverse health problems for him in the future. [ 16 ] Mr.

Xu does not have a criminal record. THE LAW [ 17 ] The principles of sentencing are now largely codified in ss. 718 , 718.1 , and 718.2 of the Criminal Code , R.S.C., 1985, c. C-46 .

Section 718.2 (

e) in particular requires sentencing judges to consider all available sanctions, other than jail, that are reasonable in the circumstances and consistent with the harm done to victims or to the community. [ 18 ] As marihuana production and use has now come under a permissive regulatory scheme, it can fairly be said there are significantly fewer cases in the province’s courts involving illegal production and trafficking.

Thus, it is necessary to review some now dated decisions for assistance in ascertaining an appropriate range of sentence. [ 19 ] The cases found in the Crown’s Book of Authorities stress the importance of deterrence and denunciation in cases of commercial/for-profit grow operations. Additionally, those cases suggest the need for sentencing courts to emphasize deterrence and denunciation is more pressing when the offender is a principal of the operation, rather than an employee. [ 20 ] Prior to the current regulatory regime when significant numbers of cases involving production occupied the province’s courts’

time, sentencing courts tended to follow the guidance offered from the British Columbia Court of Appeal in R. v. Koenders, 2007 BCCA378 , 2007 B.C.C.A. 378. As Ryan J. stated: [29] At the beginning of my discussion of Su, I said that it was a starting point in the analysis of the appropriate range forsentencing in marihuana grow operations. Since that time countless of these cases have come before the trial courts and in many of themthe Crown has heeded the comments of Mr. Justice Braidwood and called evidence at the sentencing to show the dangers the productionof marihuana can bring to a community.

With the numbers of cases before them, and with the awareness of the dangers the offence canbring, trial judges have increasingly expressed – as Pitfield J. did in the case at bar – the need for denunciation and deterrence, and havebeen less inclined to grant conditional sentences on the basis that such sentences are often insufficient to achieve those goals. In myview, this practice is consistent with the Supreme Court of Canada’s decision in Proulx.

In addressing the question of whether aconditional sentence could achieve the goal of denunciation, Lamer C.J.C. said at para. 106: [106] The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender,the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious theoffence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be.

However, there maybe certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which toexpress society’s condemnation of the offender’s conduct. [Emphasis added.] [30] Indeed, a review of the jurisprudence of this Court shows that deterrence and denunciation may reasonably involveincarceration when crafting sentences for offences related to the commercial production of marihuana. [21] A lengthy appendix compiled by the Honourable Judge Bayliff in R. v.

Chen, 2011 BCPC 297 , 2011 B.C.P.C. 0297demonstrates the British Columbia Court of Appeal’s approach through the first decade of this century when sentencing offenders forproduction of marihuana. Accused involved as principals in large, for-profit operations were generally sentenced to between 12 and 24months depending on the court’s assessment of aggravating and mitigating circumstances. Non-principals could, based on thesedecisions, receive conditional sentences of 12 to 18 months, but that was not always the case.

In some instances “gardners” weresentenced to between 9 and 12 months real jail. [22] Recently, the Supreme Court of Canada had an opportunity to comment on the issue of range analysis in sentencing hearings. InR. v. Friesen, 2020 SCC 9, Wagner C.J. wrote: [37] This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules (R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v. Nasogaluak,2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44; Lacasse, at para. 60).

Appellate courts cannot treat the departure from or failure to refer toa range of sentence or starting point as an error in principle. Nor can they intervene simply because the sentence is different from thesentence that would have been reached had the range of sentence or starting point been applied (McDonnell, at para. 42). Ranges ofsentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard ofreview to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273.

As this Court heldin Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences (paras. 60-61; see also McDonnell, atparas. 33-34). [38] The deferential appellate standard of review is designed to ensure that sentencing judges can individualize sentencing both inmethod and outcome. Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits thefeatures of a particular case. Different methods may even be required to account properly for relevant systemic and background factors(Ipeelee, at para. 59).

Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far fromany starting point and outside any range (see Lacasse, at para. 58; Nasogaluak, at para. 44; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R.496, at para. 4). [23] In this province Fitch J. in R. v. L.S.N., 2020 BCCA 109 , 2020 B.C.C.A. 109 expressed a similar view: [72] …It has repeatedly been said that ranges do not impose “hard and fast rules”.

A judge can impose a sentence outside the usuallyapplicable range, including in response to exceptional circumstances, so long as the sentence gives effect to the proportionality principleand is in accordance with the other principles and objectives of sentencing applicable to the case: Nasogalua at para. 44. ANALYSIS [24] It is clear that the offences for which Mr. Xu has been convicted are serious. But the question is how serious. In those casesrelied on by the Crown sentencing courts often accepted that the harm to the community of such offences was beyond dispute. As LevineJA stated in R. v.

Wallis, 2007 BCCA 377 , 2007 B.C.C.A. 377 : [40] In the circumstances of this offence and this appellant, the sentencing judge properly emphasized the principles of denunciation anddeterrence. The sentence of incarceration is proportionate to the gravity of the offence and the responsibility of the offender. The offenceis driven by greed, and has obvious deleterious effects on the communities in which it appears to thrive.

The appellant, for no reasonsthat would serve to mitigate the circumstances of the offence, turned his back on lawful society, and embarked on a criminal enterprisethat endangered his community. I find no basis to interfere with the sentence imposed. [25] Prior to the current regime, sentencing courts dealing with illegal grow operations were routinely informed about their impact onthe community through expert evidence. For instance hydro theft, often accompanied with the illegal production, exposed unsuspectinglandlords and neighbours to the risk of fire.

Similarly, damage to rental properties from such things as molds caused by the illegal growoperations left many innocent individuals deeply in debt. The illicit production and trade in marihuana was also usually controlled bysophisticated and violent individuals and groups. As the Court of Appeal noted in Wallis the harm to the community of such offendingwas obvious. Overall, the strain on community resources to combat this type of illegal activity, and that associated with it, was

undeniable. [26] Under the current regulatory regime it is a fair question to ask, had Mr. Xu’s operation acquired the necessary permitting, as itseemed to be attempting to do, how would its impact on the community be different from an illegal one? On this point I have noevidence. What I did hear in evidence was that this commercial greenhouse operation, while potentially lucrative, was only in productionfor several months. I heard of no hydro bypasses or the use of any dangerous chemicals to aid in its production. As well, no firearmswere found in the course of the search by police.

Accordingly, while I accept that the offences before me are serious, I cannot find themto be so grave that deterrence and denunciation should be given significantly greater weight than any other principles of sentencing. [27] This operation was large, but by itself is this an aggravating factor? The answer is far from clear, and indeed there is no evidencebefore me what impact this amount of marihuana has on the community today. Do we know that it would be sold exclusively on theblack market, or would it have found its way into the regulated retail market?

Who is behind its distribution, and what risks are thecommunity then exposed to. In my view such evidence in today’s regulatory climate is necessary if I am asked consider the size of theoperation as an aggravating factor. [28] Crown Counsel also argued that it was an aggravating feature that Mr. Xu was not a resident of the location where this operationwas found. Again, I ask how this factor affects the community adversely when legally authorized large, publicly traded multi-nationaloperations are involved in the same activity in the same municipality as Mr. Xu’s.

There may very well be an impact, but in the absenceof expert evidence I am not prepared to make that finding. [29] In R. v. Strong, 2019 ONCA 15 , 2019 O.N.C.A. 15 , the Ontario Court of Appeal was asked to considerwhether society’s more tolerant views toward marihuana warranted a reduction in the range of sentence for this type of offence. Itconcluded that since the penalties under the Cannabis Act are essentially the same, the offence is to be treated as serious. Respectfully, inmy view, this conclusion requires a broader analysis than only society’s views toward marihuana.

It should include detailed evidence, ifany, of the impact of such offending on the community in light of the permissive regulatory regime that currently exists. In its absencethe long-held orthodox view of societal harms for this offence should not be treated as sacrosanct. [30] Having carefully considered the evidence of Mr. Xu at trial, I am satisfied he was neither sophisticated nor capable of being theprincipal behind the operation at Gillanders Road. On the other hand, he was no mere gardener. In order to have his name on title he waslikely at a more elevated level of trust by the true operating minds.

Thus, I find his level of participation falls somewhere in the middle ofthe yard-stick considered by the courts as aggravating or mitigating. [31] What I do find compelling are Mr. Xu’s personal circumstances. I note he has no criminal record and has been more or lessgainfully employed for most of his adult life. His family is also dependent on him both financially and emotionally. While I do notconsider it a mitigating factor, his health does raise concerns for me.

Although I am aware that correctional facilities in British Columbiahave done an outstanding job at controlling the spread of COVID amongst inmates, the risk of infection has not been eliminatedaltogether. I accept that serving a conventional jail sentence would potentially expose Mr. Xu, with his particular health problems, tomore adverse effects in the event of infection. [32] Overall, I accept that the offences committed by Mr. Xu are serious.

However, when I balance all of the aggravating andmitigating factors, and consider the principles of sentencing I am satisfied that a sentence served in the community is just and appropriatein the particular circumstances of this offence and this offender. The sentence will be 18 months in duration. These are the conditions: 1. You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You mustnotify the court or your conditional sentence supervisor in advance of any change of name or address and promptly notify the court orsupervisor of any change in employment or occupation. You must remain in British Columbia unless you have prior written permissionfrom the Court or your conditional sentence supervisor to leave the province. 2. You must report in person to a conditional sentence supervisor at the address in Chilliwack by 3:00 PM today, April 20, 2022 andafter that, you must report as directed by your supervisor. 3.

When first reporting to your conditional sentence supervisor, you must provide them with the address where you live and your phonenumber. You must not change your address or phone number without prior written permission from your supervisor. 4. You must not possess or consume alcohol, drugs or any other intoxicating substance, except with a medical prescription. 5. You must complete 80 hours of community work service under the direction of your conditional sentence supervisor. Yourcommunity work service must be completed by June 30, 2023. 6.

You must not possess any marijuana (except with a medical prescription), metal halide lights, light bulbs of more than 250 watts,sodium vapour lights, ballasts, capacitors, light timers or diesel generators. 7. You must not possess, directly or indirectly, any weapon as defined by the Criminal Code, including:

a) firearms and ammunition;

b) cross-bows, prohibited or restricted weapons or devices, or explosive substances;

c) anything used, designed to be used, or intended for use in causing death or injury to any person, or to threaten or intimidate anyperson;

d) any imitation of all of the above, including any compressed air guns or BB/pellet guns; or,

e) any related authorizations, licenses and registration certificates, and you must not apply for any of these.

[ 33 ] In addition, pursuant to

section 109 of the Criminal Code , you are prohibited from possessing weapons described in that

section for a period of 10 years. [ 34 ] Pursuant to

Section 486.02, as this is a secondary designated offence, I order that you provide a sample of your DNA for entry into the National DNA databank by attending at the police detachment within the next seven days, no later than April 27, 2022. [ 35 ] There will be an Order for Forfeiture for items seized as described in the Order of Forfeiture provided by Crown Counsel. [ 36 ] The Victim Fine Surcharge is not waived in the circumstances. _______________________________ The Honourable Judge D.H. Silverman Provincial Court of British Columbia