Court of Appeal for Ontario

Date: 2024-12-09 Docket: COA-24-CR-0114

Judges: Rouleau, George and Gomery JJ.A.

Between:

His Majesty the King Respondent

and

Lorne St. Rose Appellant

Counsel: Lorne St. Rose, acting in person Margaret Bojanowska, appearing as duty counsel Jacqueline Porter, for the respondent

Heard and released orally: December 3, 2024

On appeal from the sentence imposed by Justice E. Llana Nakonechny of the Superior Court of Justice on December 18, 2023.

Reasons for Decision

[1] The appellant pleaded guilty to, and was found guilty of, possessing fentanyl for the purpose of trafficking contrary to s. 5(2) of the CDSA. [1] The sentencing judge imposed a six-year penitentiary sentence and made several corollary orders, including DNA, forfeiture orders, and a s. 109 prohibition for 10 years.

[2] The appellant appeals his sentence on the basis that the sentencing judge erred by 1) failing to resolve the question of whether he was a mid-level dealer or a low-level street dealer, and sentencing him as a mid-level dealer; 2) failing to consider significant mitigating factors; and 3) failing to give the appellant credit for two days in presentence custody and for the time spent on restrictive bail. He asks that his sentence be reduced from six years to four years.

[3] We do not accept most of the appellant’s submissions.

[4] The sentencing judge did resolve the question of whether the appellant was a mid-level dealer, finding that he “was engaged in mid-level commercial trafficking, given the 44.26 grams quantity of fentanyl and quantities of other controlled substances found in his apartment.” This inference was available to the sentencing judge.

[5] Neither did the sentencing judge err by failing to consider mitigating circumstances. While the sentencing judge did not repeat every submission made by counsel, she noted that she had to consider all of the principles of sentencing, including rehabilitation, and adverted specifically to the principle of restraint. The sentencing judge was aware of the appellant’s addiction to drugs, citing this in her reasons. She was also aware of and noted both his employment history and his struggles with physical and mental health issues.

[6] With respect to the third ground of appeal, the Crown agrees, as do we, that the sentencing judge did not grant the appellant credit for the days spent in presentence custody when she should have. The appellant will be given credit for these two days on a 1.5 to 1 basis.

[7] We reject the appellant’s submission with respect to the treatment of his time spent on bail. While the appellant’s trial counsel made submissions noting the time he had spent on bail subject to a curfew, there was no evidence about what impact the curfew had on the appellant. It is therefore unsurprising that the sentencing judge did not specifically reference this in her reasons. We also note that while the appellant asked that the fact he had been on bail be taken into account, he did not ask that he be given specific credit for this time.

[8] At his appeal hearing, the appellant spoke at length about his employment, vocational training, volunteering and involvement in peer support programs during his incarceration. The steps he has taken are admirable. He has clearly gained insight into the impact of his drug addiction on his own life and the lives of those to whom he sold drugs. We accept that he is determined to turn his life around and to make amends for these offences.

[9] To succeed on appeal, however, the appellant must demonstrate that the sentencing judge committed an error of law or principle: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. He has not done so. The sentence is not demonstrably unfit.

[10] Leave to appeal sentence is granted, and the sentence appeal is allowed such that the sentence is reduced by three days. The sentence appeal is otherwise dismissed.

"Paul Rouleau J.A."

"J. George J.A."

"S. Gomery J.A."