Court File and Parties

CITATION: R. v. Muise, 2008 ONCA 665

DATE: 20081001

DOCKET: C48490

COURT OF APPEAL FOR ONTARIO

Weiler, Gillese and Armstrong JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Timothy Muise

Appellant

Counsel: Sam Scratch, for the appellant Bradley Reitz and Andrew Wiese, for the respondent

Heard and released orally: September 29, 2008

On appeal from the sentence imposed by Justice Gail S. Dobney of the Ontario Court of Justice on November 30, 2007.

ENDORSEMENT

[1] The appellant pled guilty to two counts of trafficking in cocaine totalling 3 kgs. He was sentenced to 8 years in custody less credit of one year and 5 months for pre-trial custody and credit for strict bail conditions. The appellant’s involvement in a third transaction was taken into account in determining his effective sentence of 6 years and 4 months.

[2] The appellant appeals his sentence and submits that the trial judge made two errors in sentencing him. The first is that the trial judge erred in applying the parity principle. The appellant submits that his role was not greater than that of two co-accused, Messrs. Raimondo and McIlquham, both of whom received lesser sentences. The appellant concedes that his involvement was greater than that of another party, Mr. Lacroix, who received a five year sentence.

[3] The second issue is whether the sentencing judge erred by treating the money forfeited by Raimondo and McIlquham as equivalent to 1 year in jail when comparing their sentences with that of the appellant.

[4] The sentences of Raimondo and McIlquham cannot be compared and weighed in isolation. The appellant was one of 24 people arrested at the end of a major investigation (“Project Tandem”) aimed at members of the Hells Angels in Southern Ontario. The appellant was not a full fledged member but had been described as a “hang around” member of the Angels. The sentences received by 11 others involved in Project Tandem were among the factors the trial judge considered in arriving at an appropriate sentence but were clearly not the only factors. Her finding that the appellant was more culpable than Raimondo and McIlquham was supported by the evidence and justified his longer sentence. Even if the judge improperly took account of the forfeiture of money seized to reduce the sentences of Raimondo and McIlquham, that is a factor that is relevant to those sentences, not the appellant’s otherwise fit sentence.

[5] Accordingly while we would grant leave to appeal, the appeal as to sentence is dismissed.

“K.M. Weiler J.A.”

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”