Court of Appeal for Ontario

Date: 2017-12-07 Docket: C61595

Parties

Between

Her Majesty the Queen Respondent

and

Steven Butters Appellant/Applicant

Panel

Hoy A.C.J.O., Doherty and Feldman JJ.A.

Counsel

Janani Shanmuganathan and Erin Dann, for the appellant Ian Bell, for the respondent

Hearing

Heard and released orally: December 7, 2017

On appeal from the conviction entered on July 14, 2015 and the sentence imposed on June 8, 2016 by Justice Graham R. Wakefield of the Ontario Court of Justice.

Reasons for Decision

1The appellant raises two grounds of appeal from conviction. Neither can succeed. The totality of the evidence, particularly in the absence of any evidence from the defence, fully justified the conclusion that the piece of crack cocaine in Mr. Taggert's possession came from the appellant through the intermediary of Ms. Anthony. The verdict was not unreasonable.

2The trial judge's characterization of the transfer from Ms. Anthony to Mr. Taggert as occurring "immediately" after the transfer from the appellant to Ms. Anthony is not a misapprehension of the evidence. On the totality of the evidence including the police testimony, the two transfers were closely connected in time.

3The conviction appeal is dismissed.

4The appellant seeks leave to appeal the sentence of 12 months imposed by the trial judge.

5We agree with the appellant that the trial judge erred in law by failing to take into account that this was a one-off transaction for a very small amount of crack cocaine - 0.2 grams - for $20, apparently as a favour for a friend and for no profit. Further, in emphasizing the appellant's criminal record as a reason to give a significant sentence, the trial judge failed to consider the positive steps the appellant had taken to rehabilitate himself while living on terms of effective house arrest with his parents, including obtaining employment. Finally, although the trial judge considered the significant immigration consequences of a sentence over 6 months for the appellant, he declined to take them into account as a mitigating factor because, in view of the appellant's record, he viewed the appropriate sentence as well beyond 6 months.

6In our view, an appropriate sentence for this appellant, given the low level of moral culpability for this particular offence and his significant progress in turning his life around, is around 6 months, which is at the low end of the range referred to in R. v. Woolcock, 2002 O.J. No. 4927 (C.A.).

7In accordance with R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, given the immigration consequences of a sentence of 6 months or more, it is appropriate to reduce the sentence to one that is under 6 months. In our view, an appropriate sentence in all the circumstances is 160 days. We credit the time the appellant has served in pre-sentence custody and any time spent in custody since his sentence as totalling 160 days. His full sentence has therefore been served.

8In the result, leave to appeal sentence is granted, the appeal is allowed and the sentence is varied as stated.