COURT OF APPEAL FOR ONTARIO
Rosenberg, Gillese and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Brian Burrett
Appellant
Brian Burrett, acting in person
Vincenzo Rondinelli, acting as duty counsel Jeremy Streeter, for the respondent
Heard: August 16, 2011
On appeal from the convictions entered and sentence imposed on October 9, 2008, by Justice Robert Graydon of the Ontario Court of Justice.
ENDORSEMENT
1The appellant sold cocaine to an undercover police agent on a number of occasions. On January 8, 2008, he sold 18 ounces of cocaine to the agent through an intermediary. On January 23, 2008, again through the use of an intermediary, the appellant sold one kilogram of cocaine to the agent. And, on March 4, 2008, the appellant again sold one kilogram of cocaine to the agent through a third party. The appellant pleaded guilty to three trafficking offences and received a sentence equivalent to seven years’ imprisonment.
2The appellant is a Type 1 diabetic and has been since he was 9 years of age. He takes five injections of insulin per day and needs to have good blood control otherwise he becomes hypoglycaemic and experiences dizziness, difficulty concentrating and speaking, weakness, confusion, anxiety and vision changes. He appeals against conviction on the basis that his guilty pleas are invalid due to his medical condition on the day on which he entered his pleas. Specifically, he says that by the time he entered the courtroom and pleaded guilty, he was experiencing many of these symptoms. He said he had difficulty speaking and concentrating and that it was like he was in a “drunken state”.
3The appellant seeks to appeal his sentence on the basis that it offends the principle of parity, as his co-accused received lower sentences than he did.
THE CONVICTION APPEAL
4While the evidence demonstrates that the appellant suffers from Type 1 diabetes, in our view, he has failed to meet his onus of showing that his guilty plea was invalid due to his medical condition on the day in question.
5There is no independent evidence on the record to support the appellant’s bald assertion that he was unable to understand what was happening on the day he pleaded guilty. A review of the transcript suggests that he fully and voluntarily participated in the guilty plea proceedings. The following examples are illustrative of this:
the appellant’s lawyer confirmed that he discussed the pleas with the appellant and that the appellant was “content to go ahead”;
the appellant stood for his arraignment and verbally stated “Guilty” three times, once for each offence;
the appellant, through his lawyer, took exception to one of the facts read out by the Crown and had it corrected on the record;
after the Crown’s submissions on sentence, the appellant called over his lawyer and spoke to him;
the appellant’s counsel was aware of his medical condition and described it in his sentencing submissions;
the appellant had been looked at already that day for blood sugar levels;
after the sentencing judge asked the appellant whether there was anything he wished to say before he was sentenced, the appellant stood and made the following statement:
Just if I could make time go back, I’d, uh, make it go a different way. I made the wrong decisions in life right now, uh, but I’ve had no assaults before in my life. I would never hurt anybody and, uh, like I say, if I could make time go back, uh, I would and I’d do things a different way.
- the sentencing judge then asked the appellant how old he was and the appellant answered (correctly) “I’m 41.”
6Further, there is nothing in the transcript to suggest that anyone noticed the appellant appearing to be unwell nor is there any indication that the appellant was not feeling well enough to plead guilty. Instead, as previously noted, the appellant participated in the proceedings and demonstrated a full awareness of what was happening.
THE SENTENCE APPEAL
7The principle of parity does not apply in this case as the circumstances of the co-accused are significantly different from those of the appellant.
8The appellant pleaded guilty to orchestrating three separate transactions involving a total of over 2.5 kilograms of cocaine, all while he was on parole for a serious drug offence. His co-accused pleaded guilty to delivering smaller quantities of cocaine (approximately 1 kilogram), and received shorter sentences (up to 4 years in jail). The appellant was clearly higher up on the chain of command.
9We note, as well, that it was a joint submission for seven years’ imprisonment, which the sentencing judge accepted.
10To the extent that the appellant complains about the parole ineligibility condition, we see nothing in the submission. In light of the appellant’s record, it was open to the sentencing judge to impose such a condition.
DISPOSITION
11Accordingly, the appeal against conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is also dismissed.
“M. Rosenberg J.A.”
“E.E. Gillese J.A.”
“H.S. LaForme J.A.”