R. v. Premji, 2021 ONCA 721

Court File and Parties

Court of Appeal for Ontario Date: 20211015 Docket: C66102

Fairburn A.C.J.O., Doherty and Watt JJ.A.

Between:

Her Majesty the Queen Respondent

and

Noordin Premji Appellant

Counsel: Faisal Mirza, for the appellant Ian Bell, for the respondent

Heard: October 8, 2021 by video conference

On appeal from the sentence imposed on October 10, 2018 by Justice Leonard Ricchetti of the Superior Court of Justice.

Reasons for Decision

Reasons for Decision

1But for the appellant’s advanced age (77 years old at the time of sentencing), the 13.5-year prison sentence imposed by the trial judge was fit, having regard to the very serious nature of the offence and the absence of any significant mitigating factors. The trial judge did not, however, consider the appellant’s advanced age as a factor in mitigation of sentence. As the trial judge said: “There are no mitigating factors.”

2As the court noted in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 74:

[I]n the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender’s remaining natural life span.

3Therefore, in exercising discretion under the Criminal Code, a sentencing judge “should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender’s expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value”: M. (C.A.), at para. 74.

4The appellant’s advanced age should have mitigated, to some extent, the very lengthy sentence called for in this case.

5The trial judge’s failure to consider the appellant’s advanced age amounts to an error in principle, having a material impact on the appropriate sentence. Accordingly, this court must perform its own sentencing analysis to determine a fit sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 43; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 27. In doing so, we accept the findings of fact made by the trial judge and consider the new information available to us on appeal.

Fresh Evidence and Fit Sentence

6We have been provided with extensive fresh evidence. The appellant’s health has deteriorated significantly since the time that he was sentenced. In light of that evidence, the Crown concedes that there should be some downward adjustment of the appellant’s sentence to take into account that deterioration. However, the appellant’s medical condition cannot overwhelm the principles of sentencing so as to result in a sentence which fails entirely to reflect the seriousness of the offence or the appellant’s moral culpability.

7The offence for which the appellant was convicted, heroin importing, remains a very serious offence committed by an individual with a previous drug-related conviction for which he received a substantial penitentiary sentence.

8In the exceptional circumstances, as laid out in the fresh evidence, and in light of the Crown’s position, we are prepared to vary the appellant’s sentence to nine years. In doing so, we should not be taken as signalling any change in this court’s approach to sentencing in large-scale drug importing cases like this one. The appellant’s very advanced age and the combination of several significant medical problems make this a highly unusual case.

Conditional Sentence

9We reject the suggestion that the appellant should receive a conditional sentence because of health-related problems or COVID-19 – related concerns. A conditional sentence would ignore entirely the proportionality principle and denigrate the seriousness of the offence.

10In our view, the appellant’s specific ongoing health-related problems and any COVID-19 – related problems that may arise from his incarceration are best dealt with by the Parole Board of Canada using the powers provided to it under the Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 121: R. v. Kanthasamy, 2021 ONCA 32, at para. 11.