COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Peltier, 2013 ONCA 141

DATE: 20130308

DOCKET: C55065

MacPherson, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Peltier

Appellant

Daniel Santoro, for the appellant

Peter M. Campbell, for the respondent

Heard: January 17, 2013

On appeal from the sentence imposed by Justice Joseph G. Quinn of the Superior Court of Justice on July 29, 2011.

MacPherson J.A.:

[1] The appellant, Adam Peltier, was convicted of three criminal offences following a six-day trial before J.G. Quinn J. of the Superior Court of Justice – possession of crack cocaine for the purpose of trafficking, producing crack cocaine, and possession of marijuana.

[2] The trial judge imposed a sentence of six years imprisonment less 18 months credit for pre-trial custody for possession of crack cocaine for the purpose of trafficking for a net sentence of 54 months. He also imposed 54 months concurrent for producing crack cocaine and three months concurrent for possession of marijuana.

[3] The appellant appeals his sentence.

[4] The facts giving rise to the convictions can be briefly stated. In the early morning hours of April 3, 2009, Windsor Police Services received a telephone tip from a confidential informant that the informant had purchased a quantity of cocaine from the appellant in room 12 of the Bestway Motel. The informant also advised that he had observed a Cadillac parked in front of room 12 and that the appellant had used that vehicle in the past. After confirming the appellant’s registration at the hotel and the presence of a grey Cadillac parked outside room 12, Windsor police continued surveillance outside room 12 and began to prepare a warrant application for the room. In the meantime, officers of the Emergency Services Unit were instructed to stop the Cadillac if it left the motel before a warrant was signed.

[5] At 11:20 a.m., the appellant was arrested while driving the Cadillac approximately five minutes after leaving the Bestway Motel. On his person, the police found cocaine and $930 cash. In a subsequent search of the motel room, police seized more cocaine, as well as 28 grams of marijuana and $1075 cash. The total amount of crack cocaine seized, according to the trial judge, was 421.5 grams. Expert evidence established that the crack cocaine was worth about $21,000 when purchased at the kilogram level and $42,000 when sold at the gram level.

[6] The appellant’s trial was limited to an application to exclude evidence under s. 24(2) of the Charter of Rights and Freedoms as a result of alleged breaches of ss. 7 and 8. Crown and defence counsel agreed that admissible evidence adduced during the Charter application would form the trial evidence. After a five-day hearing, the Charter application was dismissed. The Crown filed an expert report on consent, and the appellant elected to call no evidence. The trial judge convicted the appellant of the three offences set out above.

[7] The appellant makes three submissions in support of his position that the six-year sentence was too high.

[8] First, the appellant submits that the trial judge did not take proper account of his youthfulness as an indicator of his potential rehabilitation. This failure, says the appellant, puts the judge offside of what this court said in R. v. Borde (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417, at para. 36:

The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.

[9] The appellant couples this submission with the submission that since his longest period of incarceration for his previous offences was two months in custody, a six-year sentence for these offences is too much of an increase.

[10] I do not accept these submissions. The trial judge recognized that the sentence imposed had to take account of denunciation, deterrence and rehabilitation, and he found that these objectives would not be met by a shorter penitentiary sentence. In a case involving the production and sale of crack cocaine, he was entitled to emphasize, as he did, the need to “express the community’s denunciation of the sale of crack cocaine to its citizens.” He also stated the obvious on the issue of deterrence:

The sale of drugs is a for profit crime. The deterrence must be such that it would cause a potential drug seller to think seriously about the penalty.

[11] The trial judge also specifically addressed rehabilitation and considered the principles described in Borde. The appellant was 25 years old when he committed this set of crimes, whereas the appellant in Borde was 18 when he committed his crimes. The appellant has a long (ten years stretching back to 1999), fairly extensive (13 other convictions), and related (two previous convictions for drug offences) criminal record. He was charged with and pled guilty to another drug-related crime while facing these charges. Taking these factors together, it is hard to quarrel with the trial judge’s observations that “[t]hese facts do not demonstrate that Mr. Peltier has changed his ways.... Mr. Peltier’s prospects for rehabilitation are not good.”

[12] Second, the appellant contends that the trial judge failed to consider the mitigating fact that the appellant kept his trial limited to the Charter application and, through counsel, invited the trial judge to enter convictions once the application was dismissed.

[13] I would reject this submission. The appellant did not plead guilty to the charges. The voir dire on the Charter application involved 11 witnesses testifying over four days. This was not a mitigating factor. Moreover, when the Charter application was dismissed, the convictions that followed were inevitable, as defence counsel properly recognized.

[14] Third, the appellant submits that a six-year sentence was outside the range of sentences imposed for similar offences and similar offenders.

[15] I disagree. The appellant produced crack cocaine, a very dangerous substance. He had a substantial amount for sale to the public. In R. v. Bajada (2003), 2003 15687 (ON CA), 169 O.A.C. 226, at para. 13, this court noted that sentences of five to five and one-half years imprisonment are not uncommon for possession of a substantial amount of cocaine for the purpose of trafficking following an accused’s plea of guilty or where the accused has no prior record. Here, the appellant had a previous record for drug offences. He committed another drug offence while facing these charges. The appellant was 25 years old – an adult, not a youthful offender. The six-year sentence was within the appropriate range of sentences and, in these circumstances, was fit.

[16] I note that the trial judge made one small error in his reasons for sentence. He said that “[t]he defence position is that Mr. Peltier should receive a sentence of four years and a pre-trial custody credit of 18 months.” In fact, the defence position was that a three and one-half year sentence and pre-trial custody credit of 18 months would be appropriate. In my view, nothing turns on this minor error.

[17] In summary, the trial judge made no error in principle nor did he fail to consider, or give inappropriate weight to, any relevant factor. The sentence he imposed was fit.

[18] I would dismiss the appeal.

Released: March 8, 2013 (“J.C.M.”)

“J.C. MacPherson J.A.”

“I agree. E.A. Cronk J.A.”

“I agree. S.E. Pepall J.A.”