Court of Appeal for Ontario

Date: May 19, 2017 Docket: C62339

Judges: Hoy A.C.J.O., Feldman and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

Dustin Klammer Appellant

Counsel

Mark C. Halfyard, appearing as amicus Kelvin Ramchand, for the respondent

Heard and released orally: May 9, 2017

On appeal from: the conviction entered by Justice S.E. Healey of the Superior Court of Justice on December 23, 2015 and the sentence imposed on June 17, 2016.

Reasons for Decision

[1] We reject the appellant's argument that his conviction for trafficking in fentanyl (six 100 microgram fentanyl patches), possession of fentanyl for the purpose of trafficking, and possession of the proceeds of crime are unreasonable because the circumstantial evidence could not exclude other reasonable inferences that were inconsistent with guilt.

[2] We agree with the trial judge that, having regard to the interactions between the undercover officer, the intermediary and the appellant after the officer observed the "individual wearing the plaid shorts", the only reasonable inference was that the appellant, and not the "individual wearing the plaid shorts", was in charge of the terms on which the fentanyl would change hands and knowingly accepted the proceeds of crime. Having regard to the evidence as a whole, guilt was the only reasonable inference.

[3] However, we agree with the appellant that the trial judge erred in principle in considering his sale of oxycodone and conviction for trafficking of that drug while his trial on those charges was pending as an aggravating factor (see R. v. Skolnick, [1982] 2 S.C.R. 47) and that this error affected the sentence he imposed.

[4] The trial judge sentenced this addict to a period of custody of 33 months on all three counts concurrently. In our view, having regard to all of the circumstances of the appellant and the quantity of fentanyl at issue, a sentence of 20 months is reasonable for this first-time offender.

[5] Accordingly, the appeal against conviction is dismissed, leave to appeal sentence is granted, the appeal of sentence is allowed, and the custodial portion of the appellant's sentence is reduced to 20 months. The appellant has served seven months, leaving the remaining period of 13 months to be served in a reformatory.

"Alexandra Hoy A.C.J.O."

"K. Feldman J.A."

"M.L. Benotto J.A."