) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 6353

CITATION: R. v. Qiu, 2017 ONSC 6353 COURT FILE NO.: 16 03581 DATE: 20171024 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – Peizheng Qiu Defendant ) ) ) ) ) ) ) ) Mr. J. Costain, for the CrownMr. P. DeJulio, for the Defendant ) ) HEARD: August 9 and October 11, 2017 REASONS FOR SENTENCE Regional Senior Justice Fuerst Introduction [1] A falling-out between friends who become business partners may not be unusual.

But when that falling-out culminates inthe brutal murder of one business partner by another, it is essential that the court clearly expresses society’s denunciation of the conduct,by imposing a period of parole ineligibility that is significantly greater than the minimum. [2] Peizheng Qiu pleaded guilty to the second degree murder of Xiao Xuan Long Yu, and to indecently interfering with his bodyby dismembering it. [3] The issue to be determined is the period of time that Mr. Qiu must serve in jail before becoming eligible for parole. The Principles Governing the Parole Ineligibility Determination [4]

Section 745(

c) of the Criminal Code provides that on conviction for second degree murder, the offender must be sentencedto life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of ten to a maximum of twenty-five years.Section 745.4 specifically empowers the sentencing judge to increase the parole ineligibility period from the minimum of ten years to theperiod that the judge deems fit, up to the maximum of twenty-five years. [5] In exercising his or her discretion under s. 745.4, the sentencing judge must have regard to the character of the offender, thenature of the offence and the circumstances surrounding its commission, and the recommendation of the jury, if any. [6] As Mr.

Qiu pleaded guilty, there is no jury recommendation to be considered in this case. [7] As a general rule, the period of parole ineligibility shall be for ten years, but this can be ousted by the sentencing judge’sdetermination that, according to the criteria set out in s. 745.4, the offender should wait a longer period before having his suitability forrelease assessed. The determination of the parole ineligibility period is “a very fact-sensitive process”: R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 18.

The sliding scale of parole ineligibility reflects the fact that “within second degree murder thereis both a range of seriousness and varying degrees of moral culpability”: Shropshire, at para. 31. [8] An increased parole ineligibility period does not require unusual circumstances: see Shropshire, at paras. 26 to 27. [9] In R. v. McKnight (1999), (ON CA), 135 C.C.C (3d) 41, the Court of Appeal for Ontario held that inassessing the s. 745.4 criteria and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing arerelevant.

Those objectives, as set out in s. 718, are denunciation of unlawful conduct and the harm caused to victims or to thecommunity, deterrence both general and specific, the separation of offenders from society where necessary, rehabilitation, reparation forharm done to the victim or to the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm

done to victims or to the community. The court, however, observed in McKnight that the statutory ten year minimum ineligibility period limits the weight that can be accorded to the offender’s prospects of rehabilitation. [ 10 ] Regardless of the period of parole ineligibility imposed, the sentence remains one of life imprisonment. The sentencing judge does not decide when the offender should be paroled, but merely the period he must serve before parole can even be considered : see R. v. Trudeau (1987), 24 O.A.C. 376 (C.A.) . The Nature of the Offence and the Circumstances Surrounding Its Commission [ 11 ] Mr.

Qiu and Mr. Yu came to Canada, separately, for educational purposes. They met in school. Eventually they, along with others, began to invest in residential properties together. The homes were purchased and renovated with a view to the investors re-selling them at a profit. However, the renovations on some properties did not go as scheduled, and debt was incurred. [ 12 ] In the fall of 2015, Mr. Qiu signed an acknowledgement of debt to Mr. Yu, totalling $1.3 million. The document set out a repayment schedule. This included $50,000 due on March 31, 2016. [ 13 ] On the morning of March 20, 2016, Mr.

Qiu went to a Home Depot store, where he purchased items including a reciprocating saw, gloves, masks, and a coverall. He then went to one of the investment properties, at 2 Laureleaf Road in Markham. The house there was under renovation. It was unoccupied, but equipped with external video surveillance. The video recording showed Mr. Qiu arriving by car, and entering the house at 9:14 a.m., apparently carrying his purchases. [ 14 ] All video recording ceased at 9:19 a.m. The video recorder was later found in the basement of the house. [ 15 ] At 9:34 a.m. Mr. Qiu called Mr. Yu. Mr.

Yu told his girlfriend that he had to meet Mr. Qiu around 11:00 or 11:30 a.m. [ 16 ] Mr. Yu dropped his girlfriend off at a subway station at 10:30 a.m. She did not hear from him again. [ 17 ] Neighbours saw Mr. Yu’s white Ferrari parked at 2 Laureleaf Road later that day. [ 18 ] In the early afternoon, Mr. Qiu called his roommate, Mr. Bowe, and asked him to come to 2 Laureleaf Road. Mr. Bowe did so. Mr. Qiu told him that he had just killed someone. Another acquaintance, Mr. Yaorile, came to the house. Mr. Qiu told him the same thing. Mr. Bowe and Mr. Yaorile told Mr.

Qiu that he should turn himself in to the police. [ 19 ] Mr. Qiu went home, and changed his clothes. He put the bloodstained clothes he had been wearing at 2 Laureleaf Road into a garbage bag. [ 20 ] Mr. Qiu drove Mr. Yu’s Ferrari to 42 Division of the Toronto Police Service. The garbage bag of clothing was in the car. Mr. Bowe accompanied Mr. Qiu, in a separate vehicle. Both men went into the police station, around 6:15 p.m. They told officers that they were there for something serious. Mr.

Qiu said that he had killed his friend, at an address on Laureleaf Road. [ 21 ] Police officers canvassed homes in the area, and identified 2 Laureleaf Road as the scene of the murder. They found blood, bloody tools, and human remains in the basement there. [ 22 ] Mr. Qiu was arrested. He was interviewed by York Regional Police officers. He admitted that he killed Mr. Yu. He said that they had an argument over money, and that Mr. Yu said things would be bad for Mr. Qiu’s family in China. Mr. Qiu hit Mr. Yu on the head, more than once, with a hammer. Mr. Yu continued to threaten Mr. Qiu’s family, so Mr.

Qiu placed his hands around Mr. Yu’s neck for about two minutes, with the intention of killing Mr. Yu. Once Mr. Yu was dead, Mr. Qiu began to dismember him. He separated the limbs and appendages from the torso, and removed the head. He separated some of the flesh from the bones. He put the remains into garbage bags, which he left in the basement at 2 Laureleaf Road. [ 23 ] Police officers retrieved the garbage bags. They contained Mr. Yu’s remains. [ 24 ] The bloody clothing in the garbage bag in the Ferrari matched the clothing Mr. Qiu was shown wearing on the video recording when he entered 2 Laureleaf Road.

It contained Mr. Yu’s DNA. [ 25 ] The forensic pathologist concluded that the cause of death was “blunt/compressive and sharp force injuries of the neck in a man with blunt impact head trauma”. The Victim Impact Information [ 26 ] Two typed statements were filed by Crown counsel. They were not in the form provided for by s. 722(4) of the Criminal Code . Additionally, they were not signed. The authors were not named. They were simply noted to be Mr. Yu’s “father” and Mr.

Yu’s “fiancée”, respectively. [ 27 ] The tendering as Victim Impact Statements of unsigned documents prepared by unnamed persons should not be a practice in court proceedings. However, because no objection was taken to the filing of the statements by defence counsel, and because I infer that there may have been difficulty obtaining the statements in a timely way, I have treated the documents as Victim Impact Statements within s. 722. [ 28 ] Mr. Yu was described by his fiancée as a gentle and generous individual, who treated those around him well. Mr.

Yu’s father expressed the devastating impact on the family of the loss of his only son. The manner of Mr. Yu’s death and the defilement of his body after death, have caused his family unceasing sorrow and pain. Mr. Yu’s fiancée experienced unimaginable hurt by the loss of the man she loved deeply and planned to marry upon her graduation from university. The Character of Mr. Qiu

[ 29 ] Mr. Qiu is 30 years old. He has no prior criminal record. He was born in China and finished high school there. He came to Canada in 2001 on a student visa. He studied English as a second language, while working part-time. He then enrolled in and graduated from a business accounting program at a community college. [ 30 ] After finishing school, Mr. Qui opened a hardwood flooring business. He operated it for two years. [ 31 ] Mr. Qiu became a permanent resident in 2013. [ 32 ] In 2014, Mr. Qiu went into business with Mr. Yu, whom he met at community college.

They intended to purchase, renovate and re-sale, or “flip”, houses. Mr. Yu was to provide the money, and Mr. Qiu was to do the work. [ 33 ] Over time, tensions developed between the men over cash flow and the time that renovations were taking. These tensions were at play in March 2016. The Positions of the Parties [ 34 ] Crown and defence counsel jointly submit that I should sentence Mr.

Qiu to life imprisonment with no eligibility for parole for fourteen years for the offence of second degree murder, and to five years’ imprisonment concurrent for the offence of indecently interfering with a human body. [ 35 ] On behalf of the Crown, Mr. Costain submits that the joint submission reflects the horrific nature of the murder of a man at the hands of someone he trusted, and its significant impact on Mr. Yu’s family, friends and the community. It also takes into account that Mr.

Qiu recognized the enormity of his acts the same day as he committed the murder, and that he pleaded guilty. [ 36 ] On behalf of Mr. Qiu, Mr. DeJulio acknowledges that the crimes were horrific, but points out that Mr. Qiu is a first offender who pleaded guilty, thereby expressing his remorse and saving the expense of a lengthy trial. The joint submission provides Mr. Qiu with some measure of hope for the future. [ 37 ] Mr. Costain also seeks a DNA order, and a s. 109 order for life. Mr. DeJulio takes no position on the request for ancillary orders.

Analysis [ 38 ] The nature of this murder was unspeakably cruel and savage. It involved the almost immediate dismemberment of Mr. Yu’s body. Its already high moral blameworthiness is aggravated by the fact that Mr. Yu and Mr. Qiu were friends, and that there was a measure of trust between them. Mr. Yu’s murder and the indignity done to his body have had a deep and lasting impact on those closest to him. [ 39 ] In mitigation, Mr. Qiu is a first offender. He pleaded guilty, which is a sign of remorse and willingness to accept responsibility for his actions. He expressed remorse to me in court.

His guilty plea spared the time and expense of a trial, and avoided Mr. Yu’s family and friends suffering the emotional hardship of contested court proceedings. [ 40 ] In R. v. Anthony-Cook , 2016 SCC 43 , at para. 42 , the Supreme Court of Canada held that trial judges should reject joint submissions as to sentence only where the proposed sentence “would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.” I have no such concern about the joint submission put to me by Crown and defence counsel in this case.

The fourteen year period of parole ineligibility jointly suggested meets the objectives of sentencing set out in the Criminal Code , and recognizes the seriousness of this murder and the degree of Mr. Qiu’s moral culpability. Conclusion [ 41 ] Mr. Qiu, please stand. For the offence of second degree murder, I sentence you to life imprisonment with no eligibility for parole for fourteen years. For the offence of indecently interfering with a human body, I sentence you to five years in jail, to be served concurrently. [ 42 ] On both counts, I order you to provide bodily fluid samples for DNA analysis.

On count 1, I impose a weapons prohibition order under s. 109(2)(

a) and (

b) for life. [ 43 ] The warrant of committal will be endorsed to reflect that Mr. Qiu’s life sentence began to run on March 20, 2016. Fuerst RSJ. Released: October 24, 2017

NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Sentence and takes precedence over the oral reasons read into the record.