COURT OF APPEAL FOR ONTARIO
Miller, Paciocco and Copeland JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Nicole Pezzetta
Appellant
Darren S. Sederoff, for the appellant
Marie Comiskey and Anjie Tarek-Kaminker, for the respondent
Heard: February 19, 2025
On appeal from the conviction entered on November 15, 2021, and the sentence imposed on October 19, 2022, by Justice Jodie-Lynn Waddilove of the Ontario Court of Justice.
REASONS FOR DECISION
1The appellant, who was convicted of drug trafficking offences and received a custodial sentence of 4 years, sought a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms on the basis that her right to be tried within a reasonable time had been infringed. The application was dismissed, and the appellant appealed the dismissal of the s. 11(b) application. The appellant also sought leave to appeal the sentence imposed, and if leave was granted, appealed against sentence.
2The appeal was dismissed in its entirety at the conclusion of the hearing, with reasons to follow. These are our reasons.
The s. 11(b) application
3The appellant elected to proceed to trial in the Ontario Court of Justice, and accordingly a presumptive ceiling of 18 months applied from the date of her arrest to the end of her trial: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 5. The trial judge found that 36.1 months had elapsed during that time, necessitating an inquiry into the causes of the delay. She found that once defence delay and exceptional circumstances were considered, the net delay to trial was less than the 18-month presumptive ceiling. Accordingly, the application was dismissed.
4The appellant’s argument on appeal is, essentially, that the trial judge erred in her categorization of three periods of delay: (1) 233 days attributed to defence delay resulting from the appellant’s withdrawal of her guilty plea and re-election of trial in provincial court, a change of counsel, and a failure to meaningfully advance the matter; (2) 91 days attributed to the defence for refusing to set the matter down for trial because of complaints about untimely Crown disclosure of expert reports and police radio logs; and (3) a period of delay attributable to the Crown’s loss of the Information.
5When these periods of delay are properly characterized, the appellant argued, the net delay is above the presumptive ceiling, the delay could not be justified, and the charges ought to be stayed.
6We do not agree.
7A trial judge’s determination of whether a delay should be attributed to the defence is to be awarded a high level of deference on appeal: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 31. We are not persuaded that the trial judge made any reviewable error in her characterization of the three contested periods of delay.
8The appellant’s central argument on appeal was that the trial judge erred in characterizing nearly the entirety of the time period in which court operations were suspended due to Covid-19 protocols – March 24, 2020 to September 28, 2020 – as a discrete exceptional circumstance. The appellant argued that 50 days within that period – August 10, 2020 to September 28, 2020 – ought to have been attributed to Crown delay because the Information had been misplaced and accordingly the defence was unable to move the matter forward.
9The trial judge made no error in not acceding to this argument. The trial judge found that the delay caused by the suspension of court operations could not have been mitigated by the Crown. The appellant was unable to point to any steps that it sought to take during this period but was prevented from taking because of the missing Information.
10With respect to the 233 days that the trial judge attributed to defence delay, the appellant argues that the trial judge erred in her characterization of this time, and stressed that there was no express defence waiver of this time. The trial judge did not err. Express waiver is not required for delay to be attributable to the defence: Jordan, at para. 61. The trial judge made findings that delay resulting from change of plea, change of counsel, and a series of unproductive pre-trial conferences were properly attributable to the defence. The appellant has not identified any basis on which this court could interfere with these findings.
11With respect to the appellant’s refusal to agree to trial dates until her disclosure demands had been met, the trial judge found that the appellant was acting unreasonably. The trial judge was very familiar with the litigation and was well-placed to understand the significance of the expert reports (addressing the inferences that could be drawn from drug slang and possession of large quantities of cocaine) and whether the timing of their production would generate any prejudice to the appellant. The trial judge made no error.
12Accordingly, the appeal of the s. 11(b) ruling is dismissed.
The sentence appeal
13The defence had sought a conditional sentence of 18-24 months. The Crown had sought a custodial sentence of 5.5 years. The trial judge imposed a sentence of 4 years, as against a sentencing range of 5-8 years for drug trafficking on this scale: R. v. Lynch, 2022 ONCA 109, 160 O.R. (3d) 241, at para. 14. On appeal, the appellant argued that the sentence is demonstrably unfit and the trial judge erred by failing to consider relevant factors.
14In particular, the appellant argues that the trial judge ought to have concluded, given the appellant’s impressive efforts at rehabilitation and her obligations towards her two young children, that a conditional sentence was appropriate. The appellant argues that the trial judge overemphasized the sentencing objectives of general and specific deterrence, placed too much emphasis on the quantity of drugs involved in the trafficking, and failed to address other sentencing objectives that pointed to a lesser sentence.
15We do not agree that the sentence, which was below the sentencing range for a mid-level cocaine trafficker identified in Lynch, was demonstrably unfit. The trial judge did not err in concluding that a conditional sentence would not be appropriate given the scale of the appellant’s drug trafficking. The sentencing judge did not, in rejecting the appropriateness of a conditional sentence, overlook the fact that the appellant is a mother to young children. But the trial judge was expressly concerned that the appellant had exposed her children to a significant risk of harm by storing significant quantities of drugs in an accessible place in the family home, while trafficking from the home – creating an additional risk of harm to the children.
16Neither did the trial judge make any error in principle. The trial judge considered the mitigating and aggravating circumstances, and carefully explained her decision. An appellate court is not permitted to reweigh sentencing factors absent an error in principle: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. The appellant has not identified one.
DISPOSITION
17The appeal of conviction is dismissed. Leave to appeal sentence is granted and the appeal of sentence is dismissed.
“B.W. Miller J.A.”
“David M. Paciocco J.A.”
“J. Copeland J.A.”