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PROCEDURE - Pleas - Setting aside guilty plea

Friday, January 22, 2021 @ 6:46 AM  


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Appeal by 54-year-old Lin from his convictions for possession of ketamine for the purpose of trafficking, producing ketamine and failing to comply with a recognizance and the 14-year sentence imposed. The appellant, his adult son and his ex-wife were arrested following a police investigation of ketamine labs. The arrests followed the execution of a search warrant of the ex-wife’s condominium, during which the police discovered 60 kilograms of ketamine. The appellant was released and subsequently arrested again on further drug charges following an investigation of three other ketamine labs. He pleaded guilty following the dismissal of his application for a stay of proceedings based on an alleged violation of his right to a trial within a reasonable time. The appellant acknowledged he did not raise the issue of appealing the s. 11(b) Charter ruling with his counsel during the plea inquiry. The appellant did not have a previous record. The sentencing judge sentenced the appellant to 15 and a half years’ imprisonment and gave him credit of 447 days for pre-sentence custody.

HELD: Appeal from conviction dismissed; appeal from sentence allowed. The appellant’s guilty pleas were informed, unequivocal and valid. If the appellant harboured a continuing desire to appeal the adverse s. 11(b) ruling, he did not communicate that fact to his counsel. The sentences imposed were demonstrably unfit. The sentencing judge did not give sufficient weight to the mitigating factors that the appellant was a first offender and pleaded guilty. The sentences violated the principles of parity and proportionality. None of the cases referenced by the sentencing judge supported the sentences she imposed. The factual basis for the breach of recognizance conviction was the same factual basis for the drug convictions. The sentence for the breach of recognizance conviction should have been made concurrent to the drug sentences. While an appropriate sentence for the possession charge was six years and for the production charge was eight years’ consecutive, 14 years was not proportionate. The sentences were reduced to five years each to reflect the proportionality principle. Sentence: five years’ imprisonment for possession for the purpose of trafficking, less 447 days for pre-sentencing custody; five years’ consecutive for production; six months’ concurrent for breach of recognizance.

R. v. Lin, [2020] O.J. No. 5290, Ontario Court of Appeal, G. Huscroft, B. Miller and I.V.B. Nordheimer JJ.A., December 4, 2020. Digest No. TLD-January182021010