Court of Appeal for Ontario

Date: 2017-05-18 Docket: C62174

Judges: Feldman, van Rensburg and Pardu JJ.A.

Between

Her Majesty the Queen Appellant

and

Jordan McGregor Respondent

Counsel

Allyson Ratsoy, for the appellant Richard Addelman, for the respondent

Heard: March 13, 2017

On appeal from the sentence imposed on April 29, 2016 by Justice Robert L. Maranger of the Superior Court.

Reasons for Decision

[1]

This is a Crown appeal against sentence.

[2]

The respondent was a long-time distributor of cocaine for a criminal organization. He was charged with offences committed in 2012-2013, but admitted on wiretaps that he had been trafficking in cocaine as a distributor for an organized crime gang for over ten years and that he had also acted as an enforcer. Following his arrest in October 2013, he was released on bail. In February 2015, he was re-arrested for numerous breaches of recognizance and for possession of 17 oxycodone pills for which he had no prescription. His bail was revoked pursuant to s. 524(4) of the Criminal Code and he remained in custody until his sentencing.

[3]

He pleaded guilty in May 2015 but was not sentenced until April 2016. He served one year, 69 days in pre-sentence custody.

[4]

After his guilty plea, the respondent was sentenced to seven years and 69 days imprisonment, broken down as follows: five years for conspiracy to traffic cocaine, five years to be served concurrently for trafficking in cocaine, two years and 69 days to be served consecutively for committing an indictable offence for the benefit of a criminal organization, one year to be served concurrently for possession of oxycodone and one year on each of the seven counts for breach of recognizance, to be served concurrently. The sentencing judge gave 1:1 credit for pre-sentence custody in accordance with ss. 719(3) and (3.1) of the Criminal Code. He applied the credit to the sentence for the criminal organization offence, thereby reducing it to under two years.

[5]

The Crown raises three arguments on appeal.

[6]

First, the Crown says that the sentencing judge erred in applying pre-sentence custody credit to the sentence for the criminal organization offence rather than to one of the other sentences. Pursuant to s. 743.6(1.2) of the Criminal Code, the court is presumptively required to delay parole to one half of the sentence or ten years, whichever is less, for an offender receiving a sentence of imprisonment of two years or more on conviction of an offence for the benefit of a criminal organization. Also the sentence is to be served consecutive to any other sentence imposed: Criminal Code, s. 467.14.

[7]

The Crown submits that the sentencing judge's approach, which reduced the length of the sentence for the criminal organization offence to under two years, had the effect of avoiding the statutory consequence regarding parole eligibility and therefore undermined the intended effect of this section, which is to enhance punishment for offences involving criminal organizations.

[8]

We do not accept this submission. While it is clear that the intent of the quoted provisions is to enhance the severity of sentences imposed for an offence involving criminal organizations, there is nothing in the Criminal Code that prohibits a judge from applying the pre-sentence custody in the manner that was done in this case. Furthermore, the Crown acknowledged in oral argument that, as submitted by counsel for the respondent, because of the total length of the sentence imposed in this case, the appellant's parole eligibility will not be affected by the approach taken by the sentencing judge. Although he did not say so, this consequence may well have informed his decision.

[9]

Second, the Crown asserts that the sentencing judge erred in making the breach of recognizance and possession of oxycodone sentences concurrent to the other sentences when the respondent committed these offences 16 months after his initial arrest, and when there was no nexus between the two sets of offences. While the sentencing judge was entitled to impose concurrent sentences after applying the totality principle, he did not advert to totality in his reasons for sentence.

[10]

We agree that in the normal course, the sentence for the breaches and possession of oxycodone would be consecutive to the other sentences because they were entirely separate offences committed later in time, and constituted breaches of his release terms. However, it is clear from a review of the entire sentencing reasons as well as the sentences imposed on other members caught in the same police project that the sentencing judge imposed a sentence that in total accorded with his view of what was appropriate in all the circumstances. Furthermore, we were told that the respondent spent 11 months in pre-sentence custody following his guilty plea because of the unavailability of the court. That custody could only be credited on a 1:1 basis. This factor may also have influenced the sentencing judge's decision to make the sentence concurrent.

[11]

Finally, the Crown says that the sentence for conspiracy to traffic in cocaine and trafficking in cocaine was unfit as it was outside the proper range for the quantity of cocaine and level of involvement of the appellant.

[12]

At sentencing, the Crown asked for a sentence at the top end of the range which it submitted was 8-14 years. The appellant asked for 5 years, which he stated was the low end of the range, which he argued was 5-13 years. The cases cited by the parties include: R. v. Battista, 2011 ONSC 6394; R. v. Bryan, 2011 ONCA 273; R. v. Majnoon, 2009 ONCA 876, 257 O.A.C. 108, leave to appeal refused, [2010] S.C.C.A. No. 288; R. v. Nero, 2008 ONCA 622; R. v. Muise, 2008 ONCA 665; R. v. Bajada, 173 C.C.C. (3d) 255; R. v. Feeney, 2015 ONSC 3218; R. v. Chaves, [2013] O.J. No. 5423. The sentencing judge then imposed the five year sentence, as part of the total sentence of seven years, 69 days. This court was apprised of two other sentences imposed on two offenders charged in the same police investigation, one by the same judge, of eight years each based on joint submissions in R. v. Perron, (11 October 2016), Ottawa, 13/30422 (S.C.) and R. v. Gheorghevici. Although this was not a joint submission, the trial judge referred to the sentence imposed in Gheorghevici and it is apparent he considered the parity principle when imposing this sentence.

[13]

We agree with the Crown that the case law supports the submission that eight years is toward the low-end of the accepted range for conspiracy to traffic in cocaine for mid-level dealers trafficking in quantities that include the kilogram level. While a very heavy sentence was warranted in this case, we cannot say that it is an error of law beyond the discretion of the trial judge to have imposed five years as part of a total sentence following a guilty plea and that is in accord with other sentences to which the parity principle applies.

[14]

In the result, while leave to appeal sentence is granted, the appeal is dismissed.

"K. Feldman J.A."

"K. van Rensburg J.A."

"G. Pardu J.A."