R. v. Ni

2025 BCSC 845 R. v. Ni

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Ni, 2025 BCSC 845 Date: 20250414 Docket: 32994-16 Registry: Vancouver Rex v. Li Fu Alex Ni Restriction on Publication: Pursuant to 486.5(1) & 486.31(1) C.C.C. Before: The Honourable Justice Edelmann Oral Reasons for Sentence Counsel for the Crown: R.J. Antonuk F. Nejatali Counsel for the Accused: P.J. Butler Place and Date of Trial/Hearing: Vancouver, B.C. February 28, 2025 Place and Date of Judgment: Vancouver, B.C. April 14, 2025 [1] THE COURT: Mr. Ni was found guilty after trial by jury of two offences. The first related to breaking and entering and stealing firearms from a residence on Broadmoor Boulevard in Richmond on August 31, 2020. The second related to the sale of one of those firearms to an undercover police operator for $3,000 on December 11, 2020. He is now before me for sentencing on those matters. [2] The Criminal Code addresses the fact‑finding role of a sentencing judge after a finding of guilt by a jury in s. 724, specifically addressing the circumstances where a court is composed of judge and jury in 724(2): (2) Where the court is composed of a judge and jury, the court (a) shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty; and (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented

by either party with respect to that fact. [3] The Supreme Court of Canada discussed the approach to be taken by the sentencing judge after a jury verdict in R. v. Ferguson. The principles set out in Ferguson and surrounding law were distilled by the Nova Scotia Court of Appeal in Landry at paragraphs 48 and 49. I do not propose to go over those this morning as the parties are in agreement on the basic principles. [4] I would note that part of my findings of fact will also arise from rather lengthy testimony that I heard with respect to the undercover operation in the course of the Charter application, and allegation of entrapment that was heard before me in September. The facts [5] In the morning of August 31, 2020, Mr. Ni, along with two other males, Mr. Tran and Mr. Bourassa, broke into the residence at 7540 Broadmoor Boulevard in Richmond. The BC Hydro meter and security cameras had been tampered with. Once inside the residence, they used an angle saw to cut into a gun safe and committed the theft of some 15 firearms (10 handguns and five rifles) as well as other items such as high‑end purses, designer jewellery, and watches, and a significant amount of cash. [6] Mr. Ni and the two others spent over eight hours breaking into the residence and making numerous trips to and from the residence to Mr. Ni's residence on Odlin Street. Mr. Ni admitted in his testimony that he was

at the Broadmoor residence and assisted in moving items out of the residence over the course of the day. He sought to minimize his involvement and testified that he thought he was helping someone move. The jury clearly did not believe this testimony and I do not accept any of Mr. Ni's exculpatory testimony. [7] In his testimony before me during the Charter application, Mr. Ni admitted that he lied to the jury about the circumstances in which he started using methamphetamine. It was not an inadvertent lie or slight mistruth. He invented a detailed story out of whole cloth about how Mr. Bourassa had introduced him to methamphetamine, and then told a completely different story about how he had been introduced to methamphetamine by someone he had met online before me during the Charter application. [8] I do not propose to go through the evidence in detail today, but there was ample evidence of Mr. Ni's active involvement in the break and enter. Surveillance video was presented, both from across the street from the Broadmoor residence and from the entrance to the parkade and around one of the elevators at the Odlin apartment building where Mr. Ni lived. By his own admission, Mr. Ni was the driver of one of the vehicles. In observing his conduct on numerous videos that were in evidence, I find he was an active participant and was not simply taking direction from others. [9] A Rona

receipt for a 10‑pack of disks for an angle grinder and Dewalt brand reciprocating sawblades were found in the door of Mr. Ni's vehicle. He can be seen carrying a Dewalt bag out of his residence early in the day on August 31st, and a Dewalt brand angle reciprocating saw was found in the Bowcock residence at which Mr. Ni admits to spending considerable time, and where a large number of items stolen from the Broadmoor residence were ultimately found. [10] I find that Mr. Ni was actively involved in the break and enter, was engaged in procuring the necessary tools to break into the safe, and was later involved in disposing of items stolen, including the SKS rifle. I do not see any indicia that the break and enter was planned in order to steal the firearms. To the contrary, the trips to Mr. Ni's apartment building to get the Dewalt bag and to Rona to buy sawblades would appear to indicate the discovery of the safe after entering the residence. [11] The theft of the firearms appears to have been a crime of opportunity. [12] The facts in relation to the transfer of the firearm are not in dispute. On December 11, 2020, Mr. Ni gave the undercover officer a duffel bag containing a Simonov rifle SKS semiautomatic rifle, along with ammunition. Mr. Ni was aware the duffel bag contained the SKS rifle and the undercover officer gave Mr. Ni $3,000 in cash in exchange for the rifle. Mr. Ni was

not licensed or authorized to possess or transfer the SKS rifle. [13] In the course of a defence application seeking Charter relief and alleging entrapment, as I noted, I heard evidence about the undercover operation leading up to that sale. I do not propose to review in detail my findings, as I did make detailed findings with respect to the facts that led up to that sale. I found that Mr. Ni initiated discussions about the availability of firearms with the undercover officer. In an initial conversation on the topic, Mr. Ni said that he had two rifles and a handgun, showed the undercover officer photographs of them on his phone. The undercover officer asked Mr. Ni if they were wiped. Mr. Ni replied that they had been grinded and that there was no blood on them. I accept this was meant to convey that the serial numbers had been removed and they had not been used in a shooting or homicide. [14] I find it to be a reasonable inference that at least some of the firearms offered for sale to the undercover officer on this occasion and in further offers to sell various firearms over the course of the undercover investigation were among the firearms procured in the break and enter from the Broadmoor residence. There is no question the SKS rifle was one of those firearms. [15] Throughout the undercover operation, Mr. Ni sought to present himself as a well‑connected and knowledgeable

gangster. He sold the SKS rifle to an undercover officer who portrayed himself as being connected to organized crime groups in Ontario who required weapons because they were engaged in active conflict. [16] I rejected the allegation of entrapment, having found Mr. Ni to have been an active and willing participant in offering not only the SKS rifle, but also a number of other firearms for sale to the undercover officer. I did, however, find that Mr. Ni's s. 9 right not to be arbitrarily detained was breached in the initial stage of the undercover operation. I will address the remedy for the Charter breach in a few minutes. Mr. Ni's background [17] Mr. Ni was born in China, raised in Richmond, B.C., after moving to Canada at the age of three. He was raised by both his parents who were very engaged in his life. [18] I heard testimony from his father, Wiseman Ni, on two occasions, and it was clear that he was a loving and devoted father. He continues to support his son, who was residing with him in the years leading up to the trial in this matter. His father says he will continue to support him and is willing to assist him in finding employment. [19] Mr. Ni says he was married from May of 2017 until January of 2023. He has a six‑year‑old daughter with his ex‑wife. He attributes his involvement in the criminal justice system and his past substance use to the breakdown of his

marriage. When he was in the community, he says his daughter would spend weekends with him and weekdays with her mother. [20] I accept that Mr. Ni has challenges with drug use, in particular methamphetamine, although I am unable to determine the scope or the nature of his addiction. As I noted, he is willing to tell radically different stories about the origin and nature of his drug use under oath as it suits him. There were, however, sufficient indicia of drug use found by the police on various occasions to confirm that Mr. Ni was a methamphetamine user throughout the period leading up to the offences before me. [21] While I do not accept that he committed the offences purely to support a methamphetamine habit, I do accept that his methamphetamine use would have impaired his judgment and brought him into regular contact with individuals connected to organized crime. [22] He says that since being arrested on the current charges, he ceased his involvement with people involved in the drug trade and in conflict with the criminal justice system, and this is somewhat confirmed by his criminal record. [23] Mr. Ni has a criminal record, mainly for property‑related offences. However, all of his convictions postdate the offences that are before me. Only two of the offence dates, one for possession of stolen property and another for identity theft, predate the offences before me. [24]

The most serious sentence that Mr. Ni has received to date was a 10‑month conditional sentence order imposed for two counts of theft committed in 2021, for which he was sentenced in 2023. The most recent offence date on his criminal record is being unlawfully in a dwelling‑house in August of 2021. [25] Mr. Ni did not enter a guilty plea. This is not an aggravating factor on a sentence, but it is the absence of a mitigating factor. It is clear from the presentence report, however, that he continues to minimize his involvement in the offences. [26] The purposes and principles of sentencing are set out in s. 718 of the Criminal Code: 718 The fundamental purpose of sentencing is to protect society and 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 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. [27] The fundamental principle of sentencing is set out at 718.1, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [28] Some of the other principles of sentencing that are relevant in the case before me are set out at 718.2: 718.2 A court that imposes a sentence shall also take into consideration the following principles . . . And those include that: . . . a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of [that]. . . . . . a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [and that] . . . where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh . . . Break and enter and theft of a firearm [29] The maximum sentence for the offence of break and enter and theft of a firearm under s. 98 of the Criminal Code is life in prison, as set out in s. 98(4). There is no mandatory minimum sentence for this offence. As noted by the B.C. Court of Appeal in Robertson: There is no doubting that stolen firearms pose a risk to the community. It is well known that firearms used by criminals are often stolen from lawful owners and then traded or sold in the

underground market. Accordingly, priority must be given to deterrence and denunciation in sentencing an offender who participates in that market. [30] The Crown submits that the appropriate sentence is one of five years in the circumstance of Mr. Ni and relies in particular on two cases, the first being Sawatsky from this court which involved a joint submission of five years for the theft of six firearms in a break and enter. Mr. Sawatsky had 25 convictions dating back to 1995, including eight for break and enter. He had been sentenced to three years on his last conviction for break and enter in October 2017, and he was sentenced in 2022 in the case at issue. [31] The second case was the case of Mr. Martin, although it is reported as R. v. Dyck 2015 BCSC 1937, in which the offender had broken into a rural property, stealing two firearms along with ammunition and a number of other items. He had 52 prior convictions of which 16 related to property offences, including several for break and enter or robbery. A conditional sentence order for possession of stolen property had been imposed less than 24 hours before he committed the offence at issue in that case. [32] The sentencing judge would have imposed a sentence of four years, but reduced it to three years, as the CSO had been terminated and he was serving 13 months in custody as a result. [33] While, as I noted, there is no

indication that Mr. Ni was aware there were firearms in the house prior to breaking into the safe, Mr. Ni would have been well aware that a large number of firearms were found in the safe, and he was actively involved in seeking to sell firearms afterwards. [34] On the other hand, I do find the circumstance of Mr. Ni to be remarkably different from those in Sawatsky and Dyck. He has only two relatively minor offences on his record predating the commission of the offences before me, and he was sentenced for those well after the offences before me. Both offenders in those cases had lengthy records for residential break and enter for which Mr. Sawatsky had already received a sentence of three years, and Mr. Dyck, as I noted, was subject to a conditional sentence order that had been imposed the day before. [35] I will address the overall sentence in a moment, but considering the overall circumstances as they relate to the break and enter and Mr. Ni's personal circumstances, I find that a sentence of three years for the break and enter would be an appropriate sentence in the circumstances. Trafficking in firearms [36] Mr. Ni was found guilty of transferring a non‑restricted firearm, contrary to s. 99(1) of the Criminal Code, which provides for a mandatory minimum punishment of three years and a maximum punishment of not exceeding 14 years. [37] Mr. Ni challenges neither the

applicability nor the constitutionality of the mandatory minimum sentence in the circumstances. [38] I was taken to a number of cases dealing with trafficking in firearms. In R. v. Boesel, 2017 BCSC 970, the offender sold a semiautomatic shotgun to his drug dealer. Following a detailed review of cases from across the country, Justice Hyslop imposed a sentence of three years. Mr. Boesel had a lengthy record of property‑related offences, but no record relating to firearms. He was bound by a probation order at the time of the offence. [39] In R. v. Ivanic, 2009 BCSC 931 (confirmed 2011 BCCA 158), the offender had been involved in a shooting and had trafficked multiple restricted semiautomatic firearms on three separate occasions. He was under a 10‑year firearms prohibition at the time of the offences. He was sentenced to five years concurrent on the multiple trafficking offences, which was reduced to four years, four months, considering the other offences for which he was being sentenced. The sentence was upheld on appeal. [40] While I accept the Crown's submission that Mr. Ni's discussions about trafficking other weapons provide some context for assessing the nature of the offence, ultimately Mr. Ni is being sentenced for trafficking a single SKS rifle. He has no previous firearms or weapons‑related convictions. [41] In my view, a sentence of four years would be warranted in the

circumstances. Concurrent or Consecutive Sentences [42] The question of whether the sentences should be concurrent or consecutive, the test for imposing concurrent sentences is whether the acts constituting the offence were part of a linked series of acts within a single endeavour. The Court of Appeal in Potts outlined some of the factors to be considered: Courts have considered the following non-exhaustive list of factors in determining whether to impose concurrent or consecutive sentences: the nature and quality of the criminal acts; the temporal and special dimensions of the offences; the nature of the harm caused to the community or to victims; the manner in which the criminal acts were perpetrated; and the offenders' role in the crimes. [43] The Supreme Court of Canada recently reiterated some of these principles in R. v. Bertrand Marchand, 2023 SCC 26. In M.(C.A.), Chief Justice Lamer in the Supreme Court of Canada described the application of the principle of totality in the context of consecutive sentences: In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the

overall culpability of the offender. The approach to be taken was described by the Court of Appeal in R. v. Li, 2009 BCCA 85 at paragraph 28: [28] Thus, there is a two-stage approach to sentencing an offender convicted of multiple offences. The first stage is to determine the appropriate sentence for each offence, and decide whether the individual sentences should be made consecutive or concurrent. If consecutive sentences are imposed, then the second stage is to determine whether the sentences, in the aggregate, offend the totality principle. If the sentence, as a whole, is unduly harsh or disproportionate, then the length of the individual sentences should be adjusted in order to arrive at an appropriate global sentence . . . [44] In my view, the offences for which Mr. Ni has been found guilty should be sentenced consecutively. As noted by the Crown, each offence is its own separate enterprise. A break and enter is a distinct event from the selling of the SKS rifle some three months later. [45] While I conclude that the offences ought to be sentenced consecutively, in my view the fact that Mr. Ni is being sentenced for trafficking in a firearm ought to be considered in assessing the appropriate sentence for the theft of a firearm. The serious nature of the offence of break and enter to steal a firearm is in part due to the risk that the stolen firearm will be transferred or

used. In this case, the transfer of at least one of the stolen firearms did take place and Mr. Ni is being sentenced for that transfer. [46] The Crown accepts that, to the extent the sentence for break and enter and theft of the firearm would reflect the risk it would be transferred, Mr. Ni should not be punished twice in relation to the possible or actual transfer. The gravity of both offences relates to the dangers of firearms being in the hands of those who would use them to harm others. Mr. Ni was, at the very least, indifferent to the grave consequences the theft and sale of the firearms could have. [47] In my view, in the overall circumstances of this case, the global sentence should be reduced to more appropriately reflect Mr. Ni's moral culpability in that regard. Considering the principles of sentencing outlined earlier, I conclude that the sentence of five and a half years is an appropriate global sentence. Taking the approach set out in Li, I would therefore reduce the sentence on the break and enter to 2.5 years, and the sentence on the sale of the firearm to three years. The Charter breach [48] Earlier in these proceedings, I found that Mr. Ni's rights under s. 9 of the Charter had been breached following his arrest on September 18, 2020. In Nasogaluak, the Supreme Court of Canada considered the approach to be taken in considering Charter breaches at the sentencing

stage, concluding that: Where the state misconduct in question relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) of the Charter. Indeed, state misconduct which does not amount to a Charter breach but which impacts the offender may also be a relevant factor in crafting a fit sentence. [49] The court went on to note that: . . . the sentencing process includes consideration of society's collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society. [50] I do not propose to repeat my findings but, in summary, I found that Mr. Ni's detention was extended to facilitate the initiation of the undercover operation. In particular, Mr. Ni was left on a bench at the back of the booking room for close to half an hour, with one of his hands cuffed to a metal bar while the officers staged the "booking in" of the undercover officer to facilitate the building of rapport with Mr. Ni. [51] The Crown seeks to minimize the gravity of the state conduct by focusing on the intentions of the officers and relatively limited timeframe of the overholding. While I accept that the officers may not have consciously sought to breach Mr. Ni's rights, several officers demonstrated a casual disregard for the

rights of a detainee who was left handcuffed to a bar in the back of the booking room while the pretense of booking in the undercover officer was carried out. [52] The investigation for which Mr. Ni was purportedly in custody did not advance at all during that time. Officers who have custody of a detainee have a duty to ensure the protection of their rights. While I found that the state misconduct did not warrant the stay of proceedings sought by Mr. Ni, Crown quite reasonably concedes it is appropriately considered as a factor at sentencing. [53] Setting aside the Charter breach, as I noted, I would have considered a sentence of five and a half years to be warranted in the circumstances. However, given the state misconduct in the investigation which led to the sale of the firearm to the undercover officer, I conclude that a sentence of five years more adequately addresses the principles of sentencing, including those set out in Nasogaluak. [54] I have just noted that, with respect to the calculation that I undertook with respect to Li, that in reducing the sentences there should be an attribution with respect to the individual sentences. I said that I would attribute two and a half years to the sentence for the break and enter, and three years on the sale of the firearm. In my view, a more appropriate attribution would be two years on the break and enter and three and a half

years on the firearm offence. Given the approach that I am taking with respect to the Charter breach, it is unclear to me the implications of going under the mandatory minimum. I do not know that much changes with respect to the Li analysis in this case, but I will reduce the global sentence to five years in terms of the global sentence as a remedy following the principles set out in Nasogaluak. [55] Mr. Ni was arrested on January 14th for breaching bail and has been in custody since that time for a total of 90 days. The Crown agrees that Mr. Ni should get credit at 1.5 days per day that he has spent in presentence custody, which would result in a credit of 135 days. [56] Mr. Ni, if you would please stand. I will be sentencing you to a further sentence of four years and 230 days, taking into consideration the credit of 135 days, and so the record would reflect a five‑year sentence with respect to the offences. [57] The Crown seeks ancillary orders of a DNA sample under 487.051 and a mandatory lifetime weapons prohibition under s.

109. Mr. Ni does not oppose those orders and I find them both to be appropriate in the circumstances. I will therefore make both of those orders. [58] The Crown was at one point seeking forfeiture, but I understand that to have been withdrawn at this stage, as Mr. Ni is not the owner of the weapon in question. [59] Thank you all for your assistance throughout this matter. It has been a long road to get here. Mr. Ni, I do wish you the best going forward and I hope that you are not going to find yourself back in these circumstances again. "Edelmann J."