Court of Appeal for Ontario

Citation: R. v. Burchell, 2014 ONCA 242 Date: 2014-03-31 Docket: C56209

Before: Rosenberg, Cronk and Juriansz JJ.A.

Between:

Her Majesty the Queen Respondent

and

Matthew Burchell Appellant

Counsel: Paul Burstein, for the appellant Morris Pistyner, for the respondent

Heard: March 26, 2014

On appeal from the conviction entered on November 18, 2011 and the sentence imposed on March 9, 2012 by Justice C. William Hourigan of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] As counsel rightly concedes, for the appellant to succeed on the conviction appeal he must show an error in actual knowledge and wilful blindness. We need not address Mr. Burstein’s interesting argument on actual knowledge because the trial judge found wilful blindness. No objection was taken to the evidence of the earlier shipments, which was properly admissible to prove the appellant’s state of mind. The usual dangers attending similar fact evidence did not apply to this use of the evidence.

[2] Accordingly, the appeal from conviction is dismissed.

[3] As to the sentence appeal, we see no basis for appellate intervention with the sentence imposed. Although the trial judge made no explicit reference to the parity principle, his reasons confirm that he was alert to the differing roles of the appellant and his co-accused. That differentiation justified the disparate sentences imposed.

[4] Nor do we accept that the trial judge erred in his treatment of the applicable mitigating factors in this case. He took account of the appellant’s circumstances, including his prospects for rehabilitation and work history. Further, based on this court’s decision in R. v. Sidhu, 2009 ONCA 81, it was not open to the trial judge, on the facts here, to treat the appellant’s mistaken belief in the nature of the substance seized as a mitigating factor. This court, as well, is bound by the Sidhu principle. The appellant was in possession of a large amount of a very dangerous drug. The trial judge gave full consideration to all the mitigating circumstances and accordingly reduced the sentence for what might ordinarily be imposed for this amount of heroin.

[5] Accordingly, leave to appeal sentence is granted but the sentence appeal is also dismissed.