Court File and Parties

Court of Appeal for Ontario Date: 2021-05-07 Docket: C68778

Judges: Hoy, Hourigan and Zarnett JJ.A.

Between: Her Majesty the Queen Respondent

And: Robert Burgess-Champagne Appellant

Counsel: Robert Burgess-Champagne, acting in person Amy Ohler, appearing as duty counsel Joseph Selvaratnam, for the respondent

Heard and released orally: May 5, 2021 by videoconference

On appeal from the sentence imposed by Justice Ronald M. Laliberté of the Superior Court of Justice on October 14, 2020.

Reasons for Decision

[1] The appellant pleaded guilty to one count of possession of fentanyl for the purpose of trafficking, one count of possession of cocaine for the purpose of trafficking, one count of possession of property obtained by crime, and one count of conspiracy to commit an indictable offence. The trial judge found the facts supported findings of guilt on each count and convicted the appellant accordingly.

[2] The trial judge originally sentenced the appellant on June 12, 2020. He rejected the defence’s proposed blended sentence and noted that the court could not circumvent Parliament’s intent to have trafficking be ineligible for conditional sentences. The trial judge found that a fit and proper sentence was a global term of 24 months less one day, followed by 12 months’ probation. However, he adjourned imposing the sentence until October so the appellant could spend time with his dying mother. When the matter returned on October 14, 2020, the parties made submissions regarding the availability of a conditional sentence after this court’s decision in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, and whether the trial judge was functus officio.

[3] The trial judge found that a conditional sentence was not a fit and proper sentence for the appellant. Considering the totality of the circumstances, he concluded that a conditional sentence was not consistent with the principles of sentencing, specifically denunciation, deterrence, proportionality, and the degree of the responsibility of the offender.

[4] On appeal, the appellant submits that the trial judge erred by not exercising restraint and over emphasizing the principle of parity, given that a conditional sentence is now available. He also argues that the trial judge failed to freshly consider whether a conditional sentence could be fashioned that was consistent with sentencing principles in the circumstances.

[5] We see no error in principle in the trial judge’s analysis, and the sentence is not unfit. The trial judge carefully considered the request for a conditional sentence on the second sentencing hearing and provided thorough and compelling reasons for rejecting the request. There is no basis for appellate interference.

[6] Leave to appeal sentence is granted, but the sentence appeal is dismissed.

"Alexandra Hoy J.A." "C.W. Hourigan J.A." "B. Zarnett J.A."