COURT OF APPEAL FOR ONTARIO DATE: 20240507 DOCKET: C69927

Trotter, Zarnett and Sossin JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Jeffrey England

Appellant

Counsel: Andrew Furgiuele and Kamran Sajid, for the appellant Xenia Proestos, for the respondent

Heard: February 27, 2024

On appeal from the convictions entered by Justice Deborah L. Calderwood of the Ontario Court of Justice on July 28, 2021, and from the sentence imposed on April 8, 2022.

Zarnett J.A.:

Overview

[1] Niagara Regional Police Service (“NRPS”) officers suspected that the appellant was a drug trafficker. Acting on tips from confidential informants and their own surveillance, they applied for a search warrant for three locations and two vehicles they believed were linked to the appellant, including a rented storage unit in the name of the appellant’s common law partner, Jessica Travers.

[2] A Justice of the Peace issued a search warrant for some locations but initially refused a warrant for the storage unit and one other location, due to what she saw as deficiencies in the Information to Obtain (“ITO”). She later granted the warrant for those locations after receiving an amended ITO.

[3] A search of the storage unit resulted in the seizure of a loaded firearm, significant quantities of fentanyl, crystal meth, and cocaine, as well as digital scales, packing materials, and other drug paraphernalia. The appellant and Ms. Travers were charged with drug trafficking and firearm offences. The appellant was also charged with breaching various weapons prohibitions.

[4] The defence brought a pre-trial Garofoli application to challenge the search warrant. The trial judge dismissed the application. During trial, the defence moved to re-open the Garofoli application, asserting that evidence led at trial called into question the credibility of the police officer who was the affiant of the ITO and the amended ITO. The trial judge “summarily dismissed” the motion [^1] to re-open.

[5] After trial, the appellant was convicted of the charges. Ms. Travers was acquitted.

[6] The trial judge determined that the appropriate sentence for the drug counts was 10 years’ imprisonment and a sentence of 7.5 years’ imprisonment for the firearm counts, to be served consecutively. After giving 21 months of “credit” to reflect mitigation for the harsh conditions of the appellant’s pre-trial custody [^2] and a 2-year reduction to reflect the principle of totality, the aggregate sentence she imposed was 13 years and 9 months. [^3]

[7] The appellant appeals both conviction and sentence.

[8] On the conviction appeal, the appellant argues that the trial judge erred in summarily dismissing the motion to re-open the Garofoli application. He submits that the trial judge applied the wrong test to the question of whether a motion should be summarily dismissed and that she erred in failing to grant the motion because the credibility of the affiant officer was called into question.

[9] On the sentence appeal, the appellant submits that the trial judge erred in principle in a manner that impacted the sentence. He argues that the trial judge “jumped” the Crown’s position – that is, she imposed a harsher sentence than the Crown had requested – without notice to the defence. He contends that the harsher sentence resulted from a misapprehension about an aspect of his criminal record. He also argues that the sentence is unfit.

[10] For the reasons that follow I would dismiss the conviction appeal. The trial judge did not have the benefit of the Supreme Court of Canada’s decision in R. v. Haevischer, 2023 SCC 11, 480 D.L.R. (4th) and did not apply the test for summary dismissal articulated in that case. However, although the trial judge used the phrase “summarily” to describe her dismissal of the motion, substantively she considered the motion to re-open on its merits on the exact evidentiary record the defence asked her to consider. Had the trial judge applied the correct test for summary dismissal, allowed the motion to proceed, and decided it, the result would have been exactly the same as the one she reached. That result was open to her on the record.

[11] I would grant leave to appeal sentence but would dismiss the sentence appeal. Even if I were to conclude that the trial judge erred by exceeding the Crown’s position without notice, the appellant has not demonstrated that this alleged error impacted his sentence. Although the trial judge was wrong about the length of one of the appellant’s prior sentences, this did not materially distort the emphasis that she properly placed on the appellant’s lengthy record of drug trafficking offences and firearm prohibitions as a significant aggravating factor.

[12] Nor was the sentence unfit because the appellant was arrested with less fentanyl than other offenders who have received sentences of similar length, or because the principle of totality was not properly applied. The appellant was found to be engaged in a high level commercial drug trafficking operation, and was convicted not only of trafficking fentanyl but of trafficking other seriously harmful drugs as well as offences involving a loaded handgun. He had a lengthy criminal record for drug trafficking and was subject to, but ignored, four court ordered prohibitions on possessing a firearm. The trial judge properly applied the totality principle. In light of the paramount sentencing considerations of denunciation and deterrence, the sentence imposed was fit.

Factual and Procedural Context

(1) The ITO

[13] The ITO was sworn by Detective Constable Devon Sherry (“Officer Sherry”). It disclosed the following.

[14] In the fall of 2019, two confidential informants (“CIs”) provided details to NRPS concerning the appellant’s involvement in a drug trafficking operation that supplied most of Welland and some of St. Catharines with fentanyl, crystal meth, and cocaine. The CIs identified three other persons who worked with the appellant and a house in Welland where the drugs were sold.

[15] NRPS officers sought to corroborate these tips by conducting surveillance of the appellant and his associates.

[16] On November 27 and December 3, 2019, officers observed various short visits and related interactions at the Welland house which, based on their training and experience, they considered consistent with drug transaction behaviour.

[17] On December 18, 2019, officers observed the appellant in a black Jetta registered to Ms. Travers at the address of a suspected drug trafficker. The appellant left the address and police followed him to the Welland house, where he parked the Jetta and entered the residence through the side door. Seventeen minutes later, one of the appellant’s associates exited the Welland House on foot, carrying a duffle bag. The appellant then exited the house, with another of the appellant’s associates seeing him off at the door.

[18] Officers followed the appellant, who engaged in what the officers considered to be evasive driving manoeuvres intended to counter their surveillance. The officers nevertheless managed to follow him to a residence in Thorold, which was subsequently monitored.

[19] On December 30, 2019, officers followed the appellant as he left the Thorold residence. The appellant again engaged in what the officers considered to be evasive driving manoeuvres until he arrived at a SmartStop Self Storage facility. The appellant exited the vehicle and grabbed a green bag from the trunk before entering the storage facility using a keypad. Thirteen minutes later, the appellant exited the facility with a large box, which he placed in the rear passenger seat of the Jetta. After leaving, he continued to make apparently evasive driving manoeuvres before eventually parking the Jetta in a restaurant parking lot. He left the vehicle there.

[20] Officers later observed the appellant parking a Sentra vehicle (registered to the appellant) at the Thorold residence. There, he picked up Ms. Travers and the two drove to the restaurant parking lot where the appellant had left the Jetta. Ms. Travers exited the Sentra, got into the Jetta, and drove away. The appellant drove away in the Sentra. Officers considered the appellant’s practice of switching vehicles at random locations to be consistent with countersurveillance behaviour.

[21] The appellant eventually arrived at the Welland house, which he entered through the side door. Seven minutes later, one of the appellant’s associates exited the residence, returned ten minutes later, stayed for just two minutes, and left on foot again. Officers observed him meeting with another man a couple blocks away. The two men conducted a hand-to-hand transaction that the officers believed to be a drug transaction.

[22] On December 31, 2019, officers again observed the appellant at the Thorold residence. Both the appellant’s Sentra and Ms. Travers’ Jetta were there. The appellant moved unidentified items back and forth between the vehicles. He then left the premises in his Sentra. Officers followed him until he arrived at the SmartStop storage facility. He went into the facility and came back out with a cart full of boxes, which he loaded into the back seat of his Sentra.

[23] The appellant then left, driving to the address of a convicted drug trafficker in St. Catharines. He entered the residence, staying for 24 minutes before exiting at the same time as another unidentified man. He left in his Sentra, driving to a nearby Walmart. He exited the vehicle with a small white box and met up with an unidentified woman. The two entered the Walmart together. The appellant later exited the Walmart alone, no longer in possession of the white box. Officers believed that the appellant had just engaged in a drug transaction.

[24] That same day, Officer Sherry approached the management of the SmartStop facility to inquire about the storage unit that the appellant had been using. He first met with the manager of the facility, Leeona Finley. He gave Ms. Finley the names of the appellant and Ms. Travers and asked about their attendance at the facility. Ms. Finley advised that Ms. Travers had rented a unit in her name. Ms. Travers had visited the facility with a man whom Ms. Finley described as tall, bald, and white, and whom she believed to be Ms. Travers’ boyfriend. The boyfriend also frequently visited the facility on his own, driving either a white or black car. He paid for the storage unit, always in cash and in advance.

(2) The Warrant Applications

[25] On January 1, 2020, Officer Sherry submitted the ITO for a warrant authorizing the search of the Thorold residence, the house in Welland, the storage unit at the SmartStop facility, the appellant’s Sentra, and Ms. Travers’ Jetta.

[26] A Justice of the Peace issued a search warrant covering the house in Welland and the two vehicles, but she denied the request to search the Thorold residence and the storage unit. As to the latter, she explained as follows:

Your application for the storage unit is also denied. Insufficient grounds have been provided to support that there will be drugs located at this location. It is insufficient to indicate that you believe drugs will be located there. Police observe[d] [the person of interest] at location on one occasion at the unit. No information or observations are made by the [CIs] to support your belief that drugs will be located at this location. When considered in its totality, there are not sufficient grounds to support your application.

[27] Less than three hours later, Officer Sherry submitted the amended ITO in which he supplied additional information to address the Justice of the Peace’s concerns. Two additions later proved controversial.

[28] First, Officer Sherry added evidence that Ms. Finley had permitted him to view security footage when he attended the facility on December 31, 2020. He stated that the footage showed the appellant arriving at the storage facility in Ms. Travers’ black Jetta, before entering the facility with a green bag and exiting with a large box. This was consistent with what other officers had observed while monitoring the storage facility the previous day.

[29] Second, the amended ITO now stated that the CIs had provided information that the appellant “store[d] the bulk of his supply in multiple locations.”

[30] The Justice of the Peace was satisfied with the amendments and issued search warrants for the storage unit and the Thorold residence.

(3) The Search

[31] NRPS officers executed the warrants. In the storage unit, they found large quantities of fentanyl (95.5 grams), crystal meth (909.1 grams), and cocaine (151.3 grams), as well as a loaded Smith & Wesson 9mm handgun. At the Thorold residence they found $37,000 in cash. The appellant and Ms. Travers were arrested at the Thorold residence.

(4) The Charges

[32] The appellant and Ms. Travers were charged with:

• Three counts of possession of a Schedule I substance – fentanyl, crystal meth, and cocaine, respectively – for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19;
• Careless storage of a firearm, contrary to s. 86(1) of the Criminal Code, R.S.C. 1985, c. C-46;
• Unauthorized possession of a firearm, contrary to s. 91(1) of the Code;
• Possession of a firearm knowing that its possession is unauthorized, contrary to s. 92(1) of the Code; and
• Possession of a prohibited or restricted firearm with ammunition, contrary to s. 95(1) of the Code.

[33] The appellant was also charged with four counts of possession of a firearm in violation of a prohibition order, contrary to s. 117.01(1) of the Code.

(5) The Garofoli Application

[34] The appellant challenged the facial and sub-facial validity of the warrants to search the Thorold residence and the storage unit, pursuant to R. v. Garofoli, [1990] 2 S.C.R. 1421. He argued that the searches of those locations breached his right against unreasonable search and seizure, contrary to s. 8 of the Canadian Charter of Rights and Freedoms, and that the evidence derived from the searches should be excluded pursuant to s. 24(2).

[35] As to the warrants’ sub-facial validity, the appellant maintained that the addition of the claim that CIs had advised that the appellant “store[d] the bulk of his supply in multiple locations” in the amended ITO – drafted just hours after the original – was suspicious. The appellant doubted that the CIs would have come forward with this information in that short a time frame. The appellant sought and was granted leave to cross-examine Officer Sherry on this issue.

[36] When he was cross-examined, Officer Sherry explained that he had received the information about the appellant storing his supply at multiple locations from the CIs before submitting the original ITO. He had included the information in a confidential tear-away appendix referred to in the body of the ITO to which the appellant did not have access. He had arranged the information this way in order to protect the identity of the CIs.

[37] The trial judge dismissed the Garofoli application. She accepted Officer Sherry’s testimony, considering it to be clear, careful, and credible. She found that there was nothing suspicious about the information in the amended ITO and rejected the appellant’s sub-facial challenge.

[38] Turning to the issue of facial validity, the trial judge rejected the appellant’s submission that there was insufficient evidence in the amended ITO to connect the Thorold residence and the storage unit to his alleged drug trafficking operation. Her reasoning was as follows.

[39] There were clear grounds to believe that the appellant was involved in drug trafficking. He had a lengthy record of drug trafficking offences and was associating with several other convicted traffickers. The NRPS had received credible tips from trusted CIs. Officers had corroborated most of the tips’ essential details, including the identity of the appellant’s associates and the place out of which they were operating. The short trips of visitors coming in and out of the side door of the Welland house were consistent with drug trafficking behaviour. Officers observed one of the appellant’s associates conducting what appeared to be a hand-to-hand drug transaction and had also witnessed the appellant engaging in what appeared to be a drug transaction at Walmart on December 31, 2019.

[40] As to the storage unit, officers observed the appellant attend the location on consecutive days, in each case carrying items out of the locker and eventually returning to the Welland house, the suspected centre of his drug operations. SmartStop staff had confirmed that a person who fit the description of the appellant had visited the locker often and that he paid for the locker in cash. The appellant also drove to and from the storage unit using apparently evasive driving manoeuvres. The appellant’s behaviour gave rise to a reasonable belief that he was storing items related to his drug operations in the storage unit.

[41] As to the Thorold residence, while the officers had not established that the location was the appellant’s residence, he was clearly more than a visitor there. Ms. Travers conceded it was her residence and she left the appellant there alone. As well, SmartStop management stated that Ms. Travers and her boyfriend (the appellant) had attended Ms. Travers’ storage unit together on multiple occasions, indicating that Ms. Travers was involved in the appellant’s drug operations. Ms. Travers’ involvement further implicated her residence. Viewed in totality, there were reasonable grounds to believe that evidence of drug trafficking was located in the Thorold residence.

[42] In sum, the trial judge held that the appellant had failed to establish that the warrants could not have issued based on what was before the issuing Justice of the Peace.

(6) The Motion to Re-open the Garofoli Application

[43] At trial, Officer Sherry testified about his involvement in the investigation. As he had stated in the amended ITO, he testified that on December 31, 2019 he had viewed – at the SmartStop facility with Ms. Finley – surveillance video taken on December 30, 2019. He explained that the video showed a male arriving in a Jetta (who Ms. Finley said was Ms. Travers’ boyfriend), taking a green sack to the storage unit and leaving with a black box.

[44] Ms. Finley was also called as a Crown witness. She confirmed most of the details in Officer Sherry’s account. However, she did not agree that she had viewed security footage with Officer Sherry. She said that Officer Sherry had asked whether such footage existed but had never asked to see it during their initial meeting on December 31, 2019. By the time he returned in February 2020 with a production order, the surveillance video had been erased.

[45] Ms. Finley also submitted an affidavit that included payment receipts for Ms. Travers’ locker. The receipts confirmed that SmartStop had received cash payments for the locker but identified another employee, Amy Wells, as having processed the payments. Officer Sherry had identified Ms. Finley as the source of the payment information that he received on December 31, 2019, not Ms. Wells.

[46] The appellant made a mid-trial motion to re-open the Garofoli application. The basis of the motion to re-open was that Ms. Finley’s evidence called into question the credibility of Officer Sherry on points he had included in the amended ITO that had supported the issuance of the warrant to search the storage unit. The appellant provided a summary of his submissions and the evidence on which he intended to rely.

[47] The Crown argued that the motion ought to be summarily dismissed because the appellant had given inadequate notice, the court had already ruled on the validity of the warrants, and the appellant’s submissions lacked merit. In the alternative, the Crown sought an adjournment to prepare a more complete response.

[48] In dismissing the motion to re-open, the trial judge noted that the parties had not identified any cases concerning her authority to re-open the Garofoli application, but they agreed she could do so if the interests of justice required. She stated that the standard for determining whether the motion to re-open should be summarily dismissed was whether it had a “reasonable prospect of success”, citing R. v. Glegg, 2021 ONCA 100, 40 C.C.C. (3d) 276, at paras. 36-37. However, despite the references to summary dismissal, she also noted that she had in effect heard the entire argument on the motion to re-open on the evidentiary record the defence wanted:

As [defence counsel] acknowledged on the record, her submissions covered all the arguments she would advance if I were to grant her the right to re-litigate the s. 8 application. Further, she confirmed that she did not intend to seek to adduce additional evidence if the s. 8 application were to be re-opened. In the result, the defence argument as to the impact of the trial evidence on the s. 8 ruling was, in effect, fully argued before me as if I had already granted the right to re-open the application. The defence was not deprived of the opportunity to make further arguments or adduce additional evidence.

[49] The trial judge determined that the motion to re-open had no reasonable prospect of success. In her view, the warrant to search the storage unit did not hinge on whether Officer Sherry viewed security footage with Ms. Finley, as he had said in the amended ITO. She observed that the Justice of the Peace, in dismissing the initial application to search the storage unit based on the original ITO, had misapprehended some of the evidence. In particular, the Justice of the Peace had erred in stating that officers had only observed the appellant at the storage facility “on one occasion”. Officers had observed the appellant at the facility twice, while Ms. Finley had confirmed seeing someone who appeared to be the appellant and Ms. Travers at the facility several times. The trial judge went on to state:

There was no deficiency in the evidence connecting [the appellant] to the SmartStop Self Storage facility on December 30, 2019 to begin with. Detective Constable Sherry had nothing to gain by falsifying this information in the [amended] ITO. Surveillance officers made direct observations of [the appellant’s] attendance at the SmartStop Self Storage facility on December 30, 2019, having followed him there from the Esther Crescent Residence…. Nothing in what Detective Constable Sherry included in the [amended] ITO about watching the video went beyond this otherwise uncontested evidence. Manufacturing it, to strengthen the ITO, would make no sense. The evidence was already there. There would be no benefit in it. It was not evidence capable of altering the result of the issuance of the authorizations.

[50] The trial judge also opined that, to the extent that the accounts of Officer Sherry and Ms. Finley diverged, Officer Sherry’s was the more reliable:

What does make sense, having heard the trial testimony of Ms. Finley in-person before me, is that she is mistaken in her recollection of events relating to the video and simply does not remember watching what would have been a short clip of video more than a year earlier with Detective Constable Sherry in the context of an investigation that she had no central role in or responsibility for…. She is a civilian, not an officer. She was not charged with collecting, documenting, or preserving evidence or recording events.

This stands in clear contrast to the role of [Officer Sherry] and his necessary focus on these details and on keeping a contemporaneous record of information received for investigative purposes and to refresh his memory at a later time, as he did during his trial testimony…. At trial, he was able to identify details as to what he saw on the video and even about what Ms. Finley said about it at the time, relying on his notes to refresh his memory. This makes his evidence reliable while Ms. Finley’s evidence that she did not recall what the officers told her about the nature of the investigation and her lack of certainty about whether she provided documents to him confirms that her recall of events is not complete.

[51] The trial judge also found there to be no issue concerning the statements in the ITO that the appellant paid for the storage unit in cash frequently. The evidence was that Officer Sherry spoke with both Ms. Finley and Ms. Wells when he first reached out to SmartStop. The ITO simply described him as having met with “management”. Officer Sherry's failure to attribute the information to the correct source was a minor error; there was no challenge to the substance of his evidence.

[52] The trial judge concluded that the motion to re-open should be summarily dismissed.

(7) The Convictions

[53] The trial judge determined, on all the evidence at trial, that the appellant was guilty of the offences with which he was charged.

(8) Sentencing Submissions

[54] In the sentencing submissions and then in the trial judge’s decision, there were a number of separate considerations: the fit sentence for each offence; the reduction, if any, to the sentences to reflect the principle of totality; the mitigating effects of harsh conditions of pre-trial custody (a Duncan / Marshall “credit”); and a credit for the time spent in pre-sentence detention (a Summers credit). There is no issue raised on appeal regarding the latter two matters, and I therefore limit this summary to the submissions relevant to appreciate the matters raised on appeal.

[55] The Federal and Provincial Crowns made separate sentencing submissions.

[56] Federal Crown counsel submitted that a ten-year carceral sentence for the drug charges alone was fit. He emphasized the appellant’s contribution to the pressing fentanyl crisis and the paramountcy of denunciation and deterrence for such offences in the wake of R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389. He argued for a “blended approach” reflecting the appellant’s serious fentanyl and crystal meth trafficking. As aggravating factors, he stressed the appellant’s 12 prior convictions for drug offences and the commercial context of the appellant’s crimes. He agreed that there should be a Summers credit and left the Duncan / Marshall issue to the Provincial Crown to address. He recognized that Provincial Crown counsel would be suggesting the fit sentence for the firearm offences but declined to take a clear position on any reductions for the totality principle, saying that it was a “judicial function to determine totality.”

[57] Provincial Crown counsel submitted that a 7.5-year carceral sentence for the firearms charges – to run consecutively to the sentence on the drug offence – was fit given the appellant’s long criminal record, which included 12 prior convictions for drug trafficking and other related offences. He jointly submitted with the appellant that Duncan / Marshall considerations should reduce the sentence by 21 months, taking the firearm sentence down to 5 years and 9 months. He added that, factoring in the totality principle, the fit global sentence across all charges should be between 12 and 13 years, taking into account the Federal Crown’s position of 10 years on the drug charges (and before the Summers credit).

[58] Defence counsel submitted that an appropriate global sentence was ten years imprisonment, after giving effect to the totality principle but before any reductions for Duncan / Marshall considerations or Summers credit. In addition to the factors that supported a Duncan / Marshall reduction, defence counsel emphasized, as mitigating factors, the appellant’s tumultuous upbringing, the fact that he had young children, and his involvement in various programs while in custody.

[59] The trial judge pressed Federal Crown counsel on whether he agreed that “totality tops out [the sentence] in this case at 13 years”. He replied:

[I]f [the Provincial Crown] said this is worth 6 to 9 [years], and I say it’s worth 10, then the range is 16 to 19 [years], absent totality. Totality tempers the position.

I’m not agreeing with [the Provincial Crown’s] range … I’m acknowledging that totality is a factor, but I’m not agreeing that that’s the range.

[60] The trial judge asked defence counsel about the Crown’s differing positions, and specifically stated: “If we’re taking aim at your position, then I’m essentially running out of room at 13. I’m not saying I’m going to 13, I’m just trying to add them up.” Defence counsel noted that her submission mirrored the Provincial Crown’s: that the “appropriate range” was 10 to 13 years’ imprisonment.

(9) The Reasons for Sentence

[61] The trial judge determined the appropriate sentences to be 10 years’ imprisonment on the drug charges and 7.5 years’ imprisonment on the firearm charges, to run consecutively, less 21 months to reflect the mitigation factor of harsh conditions of pre-trial custody (the Duncan / Marshall credit) and 2 years’ reduction for totality. This resulted in a sentence of 13 years and 9 months, before any Summers credit. [^4]

[62] In coming to this conclusion, the trial judge noted that the appellant had a high-level role in a large drug trafficking organization that included the sale of fentanyl. The Niagara area was suffering acutely from the opioid crisis. In the circumstances, denunciation and deterrence needed to play a paramount role in her sentencing considerations.

[63] The trial judge relied heavily on Parranto as a comparator case. She found that the appellant warranted a harsher sentence than Mr. Parranto, who received 14 years’ imprisonment. Of particular note in this regard for the trial judge was that Mr. Parranto, unlike the appellant, had plead guilty, while the appellant had a criminal record that was “much more aggravating” than Mr. Parranto’s. She noted that the appellant’s record included “12 prior adult drug trafficking-related convictions” spanning the last 16 years. She understood that his record included: (i) the equivalent of a 6-year sentence for possession for the purpose of trafficking in 2011; (ii) an 8-year sentence in 2014 on a combination of drug trafficking, firearm, and breach of probation order offences; and (iii) an 18-month sentence for trafficking and proceeds of crime in 2017. The appellant was also repeatedly subject to weapons prohibition orders.

Analysis

(1) The Conviction Appeal

[64] On the appellant’s formulation, the motion to re-open the Garofoli application contemplated two distinct stages. In the first stage, the trial judge was to consider – because the Crown asked her to – whether the motion to re-open should be summarily dismissed. Assuming it was not summarily dismissed, the second stage would involve determining the motion to re-open on its merits. [^5] The appellant submits that the trial judge erred by applying the wrong test in the first stage, and therefore never properly reached or determined the merits of the motion at the second stage. He goes on to argue that the second stage admits of only one proper result: the motion should have been granted because the credibility of Officer Sherry was legitimately in question.

[65] The test the trial judge applied to determine whether the motion to re-open should be summarily dismissed was whether it lacked a “reasonable prospect of success”. In applying that test she examined the merits of the motion and considered and weighed evidence, in particular, the credibility and reliability of the competing testimony given by Officer Sherry and Ms. Finley about viewing surveillance video.

[66] As the appellant points out, the trial judge approached the matter without the benefit of the decision in R. v. Haevischer, in which the Supreme Court considered the question of when it is appropriate to “summarily dismiss an application without hearing it on its merits” in the criminal context: at para. 1.

[67] In Haevischer, the court rejected using “a reasonable prospect of success” as the test for summary dismissal. The appropriate threshold for summary dismissal is instead whether the application is “manifestly frivolous”. [^6] To determine whether that threshold is met, the judge “must assume the facts alleged by the applicant to be true and must take the applicant’s arguments at their highest”. Moreover, “the judge ought to generally assume the inferences suggested by the applicant are true, even if competing inferences are proffered.” After making these assumptions, an application will only be manifestly frivolous if there is a fundamental flaw in the applicant’s legal pathway or “where the remedy sought could never issue on the facts of the particular application”: at paras. 66, 77, 83-86. [^7]

[68] I agree with the appellant that the trial judge did not apply the test for summary dismissal set out in Haevischer. However, I disagree that this had any impact on whether the trial judge properly dealt with the motion to re-open. Unlike in Haevischer, the appellant was not deprived of the opportunity to have the motion to re-open decided on the full argument and the evidentiary record he wished.

[69] In Haevischer, the defendants applied for stays of proceedings based on alleged police misconduct and inhumane conditions of confinement. They argued that their rights to a fair trial were thus prejudiced and the integrity of the justice system undermined. They wanted the applications determined in a voir dire that would include an evidentiary hearing and would require the trial judge to decide on a complete record whether they had met the burden of establishing that stays were warranted. The Crown sought summary dismissal on the basis that an evidentiary hearing was not necessary and would not assist in determining the merits of the applications. The trial judge agreed with the Crown, summarily dismissing the applications because an evidentiary hearing “would not assist the court”: Haevischer, at paras. 16-17, 24, 28-29.

[70] The Supreme Court held the trial judge should not have summarily dismissed the application because it was not manifestly frivolous. Summary dismissal of the application undermined the defendants’ fair trial rights, as it denied them the opportunity to proceed to a voir dire on the evidentiary record they sought to develop by eliciting further evidence to substantiate their claims, including by cross-examination. The result was a decision on the ultimate issue raised by the application that was made without “access to all the necessary evidence” and on an “incomplete record”: Haevischer, at paras. 115-18.

[71] Unlike the situation in Haevischer, in this case the appellant’s trial counsel acknowledged on the record that the motion to re-open was supported by “all the arguments [the appellant] would advance” if the Garofoli application were re-opened. Defence counsel also “confirmed that [the appellant] did not intend to seek to adduce additional evidence”. Although the procedure in Haevischer contemplates a separation between what is to be considered on a summary dismissal and the fuller record that should be considered on the application itself, the parties in this case did not make or observe that separation. As the trial judge pointed out:

[T]he defence argument as to the impact of the trial evidence on the [result of the Garofoli application] was, in effect, fully argued before [her] as if [she] had already granted the right to re-open the [Garofoli application]. The defence was not deprived of the opportunity to make further arguments or adduce additional evidence.

[72] Accordingly, the use of the wrong test for summary dismissal did not have the effect that it did in Haevischer. It did not result in a failure to consider the motion to re-open on the evidentiary record the defence sought to establish. It did not result in a consideration of the merits of the motion to re-open on a record that the defence wished to supplement or expand, or that was incomplete from the defence perspective. The motion to re-open was determined, on its merits, not on an incomplete record, but on what was the full record the appellant at trial wanted considered.

[73] This conclusion is not altered by the appellant’s argument that defence counsel at trial made a mistake by seeking to rely only on the record she filed and not asking for the opportunity to develop a more complete record. Ineffective assistance of counsel is not advanced as a ground of appeal. Nor does it matter that Crown counsel had indicated a desire to call further evidence. What matters is whether the defence in bringing the motion to re-open had the record for the motion that it wished the trial judge to consider.

[74] Had the trial judge followed the two-part approach in Haevischer, and first decided that, assuming the appellant’s factual assertions about credibility were true, the motion was not manifestly frivolous, she would have been entitled to proceed to the second part and consider the motion itself on its merits. She would have had a wide discretion as to how to do so, as long as the motion was treated fairly. As the court said in Haevischer, at para. 106:

If summary dismissal is refused, judges will also be called upon to determine how the voir dire on the underlying application should be conducted, including whether there should be an evidentiary hearing or whether the matter can proceed solely on the basis of argument, an agreed statement of facts or some combination of methods. Allowing an application to proceed to a voir dire is not a free licence to counsel to argue an application however they choose. The time and leeway given to counsel to present and argue the application should be proportionate: just enough to ensure that the application is fairly treated. Beyond that point, additional time and leeway can cause undue delay. [Italics emphasis in original; underlined emphasis added.]

[75] Here, the trial judge had all the defence arguments and the evidentiary record the defence wanted. In deciding, on the basis of that complete record and what defence counsel indicated was full argument, that the motion had no reasonable prospect of success, the trial judge in effect decided that the motion should be dismissed on its merits. [^8] The motion was thus fairly treated and properly decided.

[76] I would therefore dismiss the conviction appeal.

(2) The Sentence Appeal

[77] The appellant argues that the trial judge erred in the following respects in imposing sentence.

[78] First, he submits that the trial judge, without proper notice, “jumped” – imposed a sentence that was harsher than – the Provincial Crown’s position that a global sentence of 12 to 13 years, after reduction for harsh conditions of pre-sentence detention and totality, was fit. [^9] He argues that the trial judge was not justified in exceeding this position without notice, even though Federal Crown counsel had indicated, imprecisely, that he did not agree with that range. The appellant points out that the trial judge’s question to defence counsel about the Crowns’ differing positions did not indicate she was intending to exceed the Provincial Crown’s position.

[79] Second, and relatedly, the appellant submits that the trial judge misapprehended an aspect of his criminal record. She thought that his prior convictions in 2014 had resulted in consecutive terms of imprisonment totalling 8 years when they in fact resulted in concurrent terms of imprisonment totalling 4.5 years. He submits that her repeated reference to her incorrect view that there was an 8-year sentence in his record affected the sentence she imposed.

[80] Third, he argues that the ultimate sentence was unfit, especially given the amount of fentanyl he had.

(a) “Jumping” the Crown’s Position and Misapprehending the Appellant’s Record

[81] It is appropriate to treat these alleged errors as comprising one ground of appeal involving two questions:

1. Did the trial judge “jump” the Crown’s position without notice?
2. If so, did that impact the sentence? (The misapprehension of the criminal record bears on the second question.)

[82] If a sentencing judge intends to impose a sentence that is harsher than what the Crown has proposed, they should notify the parties and provide an opportunity for further submissions. If they do not, they commit an error in principle. Such an error does not, however, automatically justify appellate interference. The error must have had an impact on the sentence before an appellate court can intervene. The harsher sentence may be overturned if: (i) there is information the accused or the Crown could have provided that would have impacted the sentence; (ii) the sentencing judge failed to provide adequate reasons for imposing the harsher sentence, foreclosing meaningful appellate review; or (iii) the reasons for the harsher sentence are flawed or erroneous: R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34, at paras. 44-46, 52, 56-58.

[83] In Nahanee, there was only one Crown prosecuting and therefore a single Crown position. Here, arguably, there was no uniform Crown position. The Provincial Crown recommended a sentence on the firearms offences of 5 years and 9 months after reduction for the Duncan / Marshall factor and, noting that the Federal Crown asked for 10 years on the drug offences, suggested a total sentence in the 12 to 13 year range after giving effect to the totality principle. But the Federal Crown said that the range was 16 to 19 years, before adding that totality “temper[ed]” its position. Federal Crown counsel did not say how much totality tempered the range, other than to say that (i) he did not agree with the Provincial Crown’s range, and (ii) it was “a judicial function to determine totality”.

[84] Although the Federal Crown’s position was not as helpful as it could have been, it is difficult to conclude that 13 years was the top end of the positions that were advanced as the fit sentence for the appellant, after giving effect to Duncan / Marshall considerations and totality. It is noteworthy in this regard that the trial judge’s “jump”, beyond the upper end of the Provincial Crown’s position, was 9 months – she imposed a global sentence of 13 years and 9 months after giving effect to Duncan / Marshall considerations and totality. Regardless of what precise sentence the Federal Crown was proposing after consideration of totality, the Federal Crown’s disagreement with the Provincial Crown’s range might be seen as extending at least to a nine-month increase above it.

[85] It is, however, unnecessary to decide if a trial judge must give notice that they intend to impose a harsher sentence than that clearly proposed by one of two Crown counsel, where the other Crown counsel proposes a higher but imprecise sentence. None of the other bases set down by Nahanee for appellate interference with the sentence, even where there has been a jump without notice, are present in this case.

[86] The appellant does not argue that either of the first two Nahanee bases are present. He does not point to information that he could have provided the trial judge, but did not, due to lack of notice that the trial judge might exceed the Provincial Crown’s sentence range. Nor does he suggest that the trial judge failed to give reasons susceptible of appellate review as to why she found the Provincial Crown’s range too low.

[87] This leaves the question of whether the third Nahanee basis is met. The appellant argues that the reasons for the harsher sentence were flawed or erroneous in the sense used in Nahanee due to the trial judge’s misapprehension of an aspect of his record.

[88] I do not accept this argument.

[89] The trial judge made an error about the length of one of the appellant’s several prior sentences. But that error cannot be said to undermine the essential core of her reasons for arriving at a sentence that exceeded that proposed by the Provincial Crown. The trial judge considered, as she was entitled to:

• The appellant’s lengthy and related criminal record comprising 12 prior drug convictions, involving several penitentiary sentences and weapons prohibitions, and that none of that had deterred him;
• The fact that the offending conduct evidenced by the record extended over a period of 16 years;
• The high level position the appellant played in a commercial drug trafficking enterprise;
• The nature, quantity and variety of the drugs, including substantial quantities of fentanyl, crystal meth, and cocaine;
• The substantial harm caused by those drugs;
• The presence of the loaded firearm; and
• The Supreme Court’s guidance in Parranto that underscored the need for heavy sentences in cases involved offenders trafficking significant quantities of fentanyl and other harmful drugs, especially when coupled with firearm offences.

[90] Considering the breadth and tenor of the trial judge’s analysis, I do not consider her misapprehension of one aspect of the appellant’s extensive criminal record to have been essential to her reasoning process, notwithstanding that she made erroneous references to the length of the 2014 sentence more than once in her reasons. The trial judge’s far greater focus, as far as the appellant’s record was concerned, was on the number of convictions for drug and firearm offences, the length of time over which they had been occurring, their serious nature (she correctly observed that a 2011 conviction involved a six year sentence), the existence of weapons prohibitions, and the fact that the appellant had not been deterred. Coupled with the other reasons the trial judge gave for the sentence at which she arrived, excising her mistake that the 2014 sentences were consecutive rather than concurrent does not leave the trial judge’s decision on unsafe ground.

(b) The Fitness of the Sentence

[91] The appellant argues that the sentence was unfit, because the totality principle was not properly applied.

[92] The totality principle “requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender”: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 42. A “combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender”: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 18.

[93] The appellant submits that the length of the sentence imposed is above the normal level given that the amount of fentanyl seized from him was 95.5 grams, and that the sentence is “crushing”. He argues that where sentences in the mid to high teens have been imposed, the amounts of fentanyl were in the neighbourhood of 500 grams (100% purity) [^10] or 2 kilograms. [^11]

[94] I do not consider the sentence, after reduction for totality, to be unfit.

[95] I agree with the Crown on appeal that the fitness of the sentence is not determined simply by comparing the quantity of one category of drugs the appellant possessed with the quantity possessed by a different offender, in different circumstances. Fitness is a function of proportionality. The process of arriving at a fit sentence “depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case”, all of which a sentencing judge is in the best position to appreciate: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 53, 58, 95. In the context of consecutive sentences, “this general principle of proportionality expresses itself through the more particular form of the ‘totality principle’”: M. (C.A.), at para. 42.

[96] As the trial judge recognized, the crimes of which the appellant has been convicted are extremely grave, both collectively and individually.

[97] In his concurring judgment in Parranto, Moldaver J. said, at para. 101:

Fentanyl trafficking, and largescale trafficking in particular, are a source of unspeakable harm. Accordingly, while the range of sentences currently imposed for the directing minds of largescale fentanyl operations straddles the upper single digits and lower double digits, sentencing judges should feel justified, where circumstances warrant, in applying a higher range, consisting of mid-level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment.

[98] Although these comments were largely concerned with fentanyl traffickers, Moldaver J. situated them within the larger problem of the harm posed by trafficking in all hard drugs, including heroin and cocaine. He noted that such drugs cause “death, destruction, and havoc” and, accordingly, “significant penitentiary sentences are regularly imposed for individuals who traffic in large quantities of [them], even if they are less deadly than fentanyl”: Parranto, at paras. 87, 92.

[99] In R. v. Lynch, 2022 ONCA 109, 160 O.R. (3d) 241, at paras. 14-15 and 24-26, this court held that the appropriate range for “mid-level traffickers” in cocaine is “five to eight years”, that fentanyl is “a more dangerous drug than is cocaine”, and that “long or longer” sentences should be imposed in fentanyl cases.

[100] In R. v. Mercier, 2023 ONCA 98, 166 O.R. (3d) 171, at para. 23, this court held that the appropriate sentencing range for “commercial or mid-level trafficking cases involving methamphetamine [crystal meth] is between approximately 5 and 12 years”.

[101] In R. v. Owusu, 2024 ONSC 671, at paras. 37-38, an accused in possession of 127 grams of fentanyl for the purpose of trafficking was described as a “mid-level trafficker” to whom a range of up to 10 years, for that offence alone, was appropriate.

[102] The appellant was not just trafficking fentanyl. He was trafficking large quantities of cocaine and an enormous amount of crystal meth. A loaded firearm was involved. To impose a sentence that focuses narrowly on the quantity of fentanyl in the appellant’s possession when he was arrested would ignore the substantial harms resulting from these other offences. The sentence that the trial judge imposed, conversely, is proportionate to the total gravity of the appellant’s crimes.

[103] The appellant’s sentence is also proportionate to his moral responsibility. The trial judge found that the appellant held a high-level position in a commercial drug trafficking enterprise. The appellant has an extensive record of drug trafficking and firearm offences. He has repeatedly re-offended despite serving multiple penitentiary sentences and being subject to multiple weapons prohibition orders.

[104] There is parity between the appellant’s sentence and those of similarly situated offenders. In Owusu, for example, Code J. imposed a 15-year sentence after application of the principle of totality in a case involving a recidivist offender who trafficked in 127 grams of fentanyl and possessed 2 firearms. The appellant’s sentence for slightly less fentanyl, very large quantities of other hard drugs, and firearm offences was, after application of the principle of totality, 15.5 years – 13 years and 9 months after mitigation for harsh conditions of pre-sentence custody.

[105] The trial judge’s decision on the appropriate way to account for the totality principle was discretionary and warrants appellate deference: R. v. Dhillon, 2019 ONCA 159, 373 C.C.C. (3d) 392, at para. 23; R. v. McNelis, 2007 ONCA 777, at para. 2; R. v. Edwardsen, 2021 BCCA 338, at para. 41; R. v. Cromwell, 2021 NSCA 36, at paras. 89-90. In light of the primary sentencing principles of denunciation and deterrence, and the appellant’s criminal record, the sentence imposed by the trial judge properly reflected the principle of totality. It was not “crushing” in light of the appellant’s record and prospects: M. (C.A.), at para. 42. And it did not exceed the gravity of the offences in question or the overall culpability of the offender. It was a fit sentence.

Disposition

[106] I would dismiss the conviction appeal. I would grant leave to appeal sentence but would dismiss the sentence appeal.

Released: May 7, 2024 “G.T.T.” “B. Zarnett J.A.” “I agree. Gary Trotter J.A.” “I agree. Sossin J.A.”

[^1]: For clarity I use the term “application” to refer to the Garofoli application itself, and “motion” to refer to the request to re-open the Garofoli application. [^2]: Pursuant to R. v. Duncan, 2016 ONCA 754; and R. v. Marshall, 2021 ONCA 344. [^3]: Before credit for pre-trial detention pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. [^4]: The Summers credit set by the trial judge was approximately three years and five months. [^5]: If the motion were granted and the Garofoli application re-opened, a third stage would involve reconsidering the validity of the search warrants. [^6]: Unless a different standard has been established for particular types of applications: Haevischer, at para. 80. [^7]: As an example of the latter, the court suggested that a Garofoli application could be manifestly frivolous if it sought to excise portions of the ITO but the warrant could still have issued on the portions that remained. [^8]: That test was, if anything, more favorable to the appellant that what should have been applied on the motion itself. [^9]: Before credit for pre-trial custody. [^10]: R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583. [^11]: R. v. Janisse, 2022 ONSC 4526; R. v. Hoang, 2022 ONSC 2534, varied R. v. Hoang, 2024 ONCA 361.