COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Delchev, 2014 ONCA 448

DATE: 20140609

DOCKET: C56467

Feldman, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Nikolai Delchev

Respondent

Susan Magotiaux, for the appellant

P. Andras Schreck, for the respondent

Heard: February 18, 2014

On appeal from the sentence imposed on December 11, 2012 by Justice Wailan Low of the Superior Court of Justice, following conviction by a jury.

Feldman J.A.:

[1] The respondent, Nikolai Delchev, was convicted by a jury of 16 counts of weapons and drug offences and received a global sentence of 42 months. The respondent appealed his convictions and the Crown sought leave to cross-appeal the sentence. The Crown was able to perfect the cross-appeal within the prescribed time limit, but the transcripts needed for the conviction appeal were not available to perfect that appeal at the same time. The case management judge allowed the Crown to proceed with the sentence appeal before the conviction appeal was perfected. The sentence appeal proceeded separately before this panel. The conviction appeal has yet to be perfected.

[2] The Crown submits that the sentence is demonstrably unfit and asks this court to impose a sentence in the range of seven years. As the respondent was released on day parole in December 2013, the Crown submits that he must be re-incarcerated.

Facts of the Offence

[3] The respondent was 36 years old on the date of the offence, June 17, 2008. He lived alone in a house he owned in Scarborough. He had a job as a fibre optics technician. Based on information from a confidential informant, the police obtained a search warrant to enter and search his home where they found him with what the trial judge referred to as a “veritable arsenal” of weaponry plus ammunition as well some drugs and related paraphernalia. Following a three-week trial, he was convicted of the following offences: possession of cocaine for the purpose of trafficking (10.5 grams); possession of oxycodone for the purpose of trafficking; simple possession of marijuana and hashish; possession of a restricted firearm (an assault rifle) without authorization or registration; possession of a prohibited firearm (a pistol) with readily accessible ammunition capable of being discharged in the firearm, without authorization or registration; possession of a restricted firearm (a carbine rifle) without authorization or registration; two counts of possession of a firearm (two rifles) without authorization or registration; storing ammunition in a careless manner; possession of a prohibited device (a high-capacity magazine for the assault rifle); five counts of possession of a prohibited weapon (a switch blade knife, a push dagger, a butterfly knife, a three-point shuriken, and a Yaqua blowgun).

Reasons for Sentence

[4] The trial judge began her reasons for sentence by noting that “guns are a blight on civil society and that the combination of guns and drugs is a toxic one…”, and that in that context, denunciation and deterrence were the most significant principles of sentencing.

[5] On the date of sentencing, this court’s decisions in R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, and R. v. Smickle, 2013 ONCA 678, 311 O.A.C. 288, striking down the three-year mandatory minimum sentence for certain gun possession offences had not yet been released. The trial judge accepted counsels’ request that she determine the appropriate sentence without reference to the mandatory minimum, and only consider the constitutionality of the mandatory minimum if the appropriate sentence was lower than that minimum.

[6] The trial judge began by considering the respondent’s history. He was born in Bulgaria and immigrated to Canada in 1980 with his parents as refugees. They settled in Scarborough, where he completed high school as well as one and a half years of a college business programme. At the time of sentencing, he was 41 years old and had worked as a fibre optics technician for 12 years. He had the support of his employer as well as family and friends. He had a dated criminal record consisting of two convictions in 1991: one for possession of a narcotic, for which he received a conditional discharge, and the other for possession of property obtained by crime under $1000, for which he received a $250 fine and 12 months probation.

[7] The respondent testified at trial that he became a cocaine addict following his mother’s death in 2000 and his subsequent break-up with his girlfriend. He further testified that the cocaine found was for his own use. While accepting that the respondent was a drug user, the trial judge did not believe he was an addict, observing that the jury rejected his contention that the cocaine was for his own use and convicted him of possession for the purpose of trafficking.

[8] The trial judge found the respondent’s evidence to be disingenuous. In particular, the trial judge found that the reason he went every night to Sunny’s Bar, a known drug marketplace, was because he was carrying on a small trafficking business for financial gain. Further evidence included the “decks” of cocaine, the supply of gloves, weighing and packaging material, and the significant quantities of cash found by the police in his home.

[9] The trial judge also rejected the respondent’s attempt to blame a person named “Jason Ramsay” for his drug use, as well as for his possession of all of the weaponry found in his home, which he claimed was based on threats of harm. She found that his evidence on these issues had no air of reality or ring of truth. The evidence found by the police, including two weapons by the respondent’s bed, the spent shell casings on the floor in the basement from a gun not found in the house, together with a paper target, military literature, and a silencer and body armour, were all consistent with the firearms and ammunition belonging in fact to the respondent.

[10] After reviewing the case law that defined the range of sentence, the trial judge considered the particular circumstances of the respondent for the purpose of weighing the relevant factors in order to determine the appropriate sentence.

[11] Although the respondent’s father had left him alone as a child to work abroad, and he had suffered the trauma of losing his mother and the break-up of his relationship, he was an adult when he committed the offences and therefore responsible for his choices. The trial judge noted that although the combination of guns and drugs was an aggravating factor, there was no evidence that the respondent ever used the firearms in connection with his drug business. Another aggravating factor was the quantity of firearms, ammunition and other lethal weapons.

[12] On the mitigating side, the trial judge referred to the support the respondent had from his father, his good employment record and the positive opinion of him held by his neighbours and friends. The trial judge accepted the respondent’s statement that he had stopped using cocaine. The respondent expressed some remorse and responsibility for his actions. The trial judge found that he had good potential for rehabilitation, and concluded:

…[A]nd in imposing the sentence which follows, I am imposing concurrent sentences for the weapons and drugs offences, rather than consecutive sentences which would otherwise be warranted in light of the unrelatedness of the offences.

[13] Taking into account: a) the offender’s age; b) his criminal record; c) his circumstances; d) the nature and quantity of the guns; e) the nature and quantity of the ammunition; f) the nature and quantity of the other prohibited weapons, the trial judge found that a fit and appropriate global sentence was 42 months plus one year concurrent for the drug offences.

Issues

[14] The Crown raises two issues in the cross-appeal against sentence:

(1) Was the sentence imposed by the trial judge so low as to be demonstrably unfit?

(2) Did the trial judge err by making the drug sentence concurrent rather than consecutive to the sentence on the weapons charges?

Analysis

(1) Was the sentence imposed by the trial judge demonstrably unfit?

[15] In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15, the Supreme Court confirmed the applicable principles from its case law that are to be applied on an appeal against sentence:

In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trial judges where appeals against sentence are concerned. An appellate court may not vary a sentence simply because it would have ordered a different one. The court must be "convinced it is not fit", that is, "that ... the sentence [is] clearly unreasonable" (R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 15). This Court also made the following comment in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 90:

...absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

(See also R. v. W. (G.), 1999 CanLII 668 (SCC), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359; and F. Dadour, De la détermination de la peine: principes et applications (2007), at p. 298.)

Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard of review to be applied by an appellate court is one based on deference. The sentencing judge has "served on the front lines of our criminal justice system" and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and the offender (M. (C.A.), at para. 91). In sum, in the case at bar, the Court of Appeal was required — for practical reasons, since the trier of fact was in the best position to determine the appropriate sentence for L.M. — to show deference to the sentence imposed by the trial judge.

[16] Therefore, when considering a Crown appeal against sentence, a court of appeal must approach its task on the basis that it is to accord deference to the sentencing decision of the trial judge, and only consider interfering where that judge made an error in principle, failed to consider a relevant factor, overemphasized a factor or imposed a sentence that was demonstrably unfit.

[17] The Crown submits that the trial judge erred by according diminished weight to a number of Ontario cases decided within the previous five years when statutory mandatory minimums were in place. The Crown argues that, “regardless of statutory floors”, those cases have established an increased range of sentence for gun and drug offences, reflecting the need for sentences to be significant in order to emphasize the goals of denunciation and general deterrence. The Crown points to the increase in violent crime in Toronto involving guns, and guns with drugs, and submits that the range of sentence has increased to meet this problem, regardless of new mandatory minimums.

[18] I do not agree with the Crown’s submission that one can ignore the effect of the (now-invalidated) three-year mandatory minimum sentence requirements when considering the range of sentence that is derived from sentences imposed based on those minimums. Several decisions – including many of the decisions which the Crown put before the trial judge – have explicitly recognized that mandatory minimums have the effect of creating an “inflationary floor” that set a new minimum punishment applicable to the “best” offender: R. v. Morrissey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 75, per Arbour J., concurring; R. v. Harutyunyan, 2012 ONSC 58, at para. 18, aff’d 2012 ONCA 637; R. v. Gobire, 2013 ONSC 2073, at paras. 19-20; R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, at para. 13; R. v. Andall, [2011] O.J. No. 3523 (S.C.), at paras. 23-24; R. v. Scarlett, 2013 ONSC 562, at para. 32; and R. v. Whyte, 2011 ONSC 181, at para. 18.

[19] The effect of the inflationary floor is that because the “best offender” must receive the minimum sentence, which may be a higher sentence higher than the one that would have been given without the minimum, the sentences for more culpable offenders are increased as well, so that the whole range increases. The cases referred to above all reflect that effect. Given that the mandatory minimums have been ruled unconstitutional by this court, the trial judge did not err if she gave diminished weight to sentences imposed following the imposition of the mandatory minimum when determining what would be a fit sentence.

[20] Having said that, the increase in gun violence and in gun violence associated with drug dealing in Toronto, requires the imposition of significant sentences in order to address the goals of denunciation and deterrence and to express society’s abhorrence of this increasing, extremely serious phenomenon.

[21] In my view, the trial judge fully appreciated both the effect of mandatory minimums on the “inflationary floor” in reviewing recent sentences and the special need for sentences that address denunciation and deterrence for guns and drugs offences when she considered all of the applicable case law and applied it in imposing the sentence she considered appropriate for the respondent.

[22] The trial judge referred to and considered all of the cases relied on by the Crown. The first was R. v. Velez-Lau, 2011 ONSC 4805. There, a four-year sentence less credit for pre-sentence custody was imposed on a 24 year old first-time offender who was convicted of possession of a loaded revolver and a semi-automatic pistol with readily accessible ammunition. In that case, the guns were found in a storage locker.

[23] In R. v. Mohamed, [2008] O.J. No. 5492 (S.C.), the two accused were convicted for possessing three unloaded handguns in an automobile. One accused had a significant record and was sentenced to nine years less credit for pre-sentence custody. The other accused received a sentence of two years. He was a 22 year old first-time offender who was employed and supporting two young children.

[24] In R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, a case decided while the mandatory minimum was still in place, the accused pled guilty to possession of a loaded semi-automatic handgun. He was 19 years old, had no record and had good rehabilitative prospects. The trial judge described the sentence as 40 months minus 20 months for presentence custody. A more accurate description is a one-day sentence plus credit of 40 months for presentence custody. The trial judge did not have the benefit of the Court of Appeal decision in Nur, where this court struck down the mandatory minimum sentence of three years, but stated that without the minimum, the offence was serious enough to warrant a sentence of three years.

[25] The next sentence referred to by the Crown was R. v. Harutyunyan, where the accused was convicted of possession of a loaded semi-automatic handgun which fell out of his trousers when he was being apprehended by the police for driving a suspected stolen car. He was also convicted of obstruction of justice. The 25 year old first-time offender was sentenced to four years. The sentence was upheld by the Court of Appeal.

[26] The Crown referred the trial judge to three cases involving guns and drugs. The first was R. v. Dehaney, 2012 ONSC 3014. The accused was convicted of possession of three and a half grams of crack cocaine for the purpose of trafficking, possession of proceeds of crime of $100, possession of a loaded, prohibited firearm and attempting to possess a firearm knowing he was not licensed. He had a minor record and an unfavourable pre-sentence report. He was sentenced to seven years imprisonment.

[27] The second case was R. v. Andall. The accused was 18 years old at the time of the offences and was a first-time adult offender. Seven firearms were seized from an apartment while he was present. He was convicted of: possession of three loaded handguns, two sawed-off shotguns, one stun gun, possession of ammunition for the purpose of trafficking, trafficking in crack cocaine, and a number of ancillary firearms offences. He received a sentence of four and a half years for possession of the firearms, six months consecutive for the ammunition for the purpose of trafficking, and one year consecutive for trafficking in cocaine, as well as a four and a half year concurrent sentence for the ancillary firearms offences, resulting in a global sentence of six years, less time served on a two-to-one basis.

[28] The third case was a decision of this court, which the trial judge stated was of the greatest assistance to her. In R. v. Wong, 2012 ONCA 767, the accused was convicted of possession of a loaded firearm without authorization, possession of a firearm without a license, trafficking in ketamine, possession of ketamine, three counts of possession of a narcotic for the purpose of trafficking (ketamine, marijuana and cocaine), careless storage of a firearm, and possession of a firearm knowing that its possession was unauthorized. He also pled guilty to failure to comply with recognizance of bail. The defendant was 24 years old and a first-time offender. He received a global sentence of three years on the weapons and drugs offences, plus 30 days concurrent for the breach of recognizance. On appeal, the conviction under s. 95(1) for possession of a loaded firearm without authorization was set aside. The sentence was upheld. This court observed again, at para. 13, that:

The combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing.

[29] After describing all of these cases, the trial judge then turned to her analysis of the circumstances of the respondent and the application of the case law. She referred specifically to the Court of Appeal’s statement that the combination of guns and drugs is a serious aggravating factor on sentencing. Another aggravating factor was the quantity of weaponry that the accused possessed.

[30] She reviewed the respondent’s circumstances and their significance in detail. For example, the trial judge considered that the respondent had a difficult childhood without a mother and with a father working abroad for months at a time, but concluded that at his age, he was responsible for his choices. She rejected his evidence that he did not like guns, but observed that there was no evidence he used the guns in connection with his drug activities. He had stopped using cocaine and had the support of his father, neighbours, friends and employer. She concluded that he had good potential for rehabilitation.

[31] Finally, she listed in short form all of the factors that she considered in coming to a fit and appropriate sentence on the weapons charges: the respondent’s age, criminal record and his circumstances as well as the nature and quantity of the guns, the ammunition and the other prohibited weapons – and imposed a global sentence of 42 months, together with one year for the drug offences, to be served concurrently.

[32] A review of the reasons for sentence demonstrates that the trial judge considered and weighed all of the evidence, relevant factors and case-law. She was alive to all of the issues, including the quantity of weapons and the drug trafficking, as well as the applicable sentencing factors. Her sentence of 42 months plus one year concurrent is at the low end of the range. However, it is a significant penitentiary sentence that addresses denunciation and general and specific deterrence principles. The respondent had never served a prison sentence before. The sentence is not manifestly unfit.

(2) Did the trial judge err in making the drug sentences and weapons sentences concurrent?

[33] The Crown also submits that the trial judge erred in law by making the drug sentences concurrent rather than consecutive to the sentences on the weapons charges.

[34] The decision whether a sentence should be made consecutive or concurrent is a discretionary one. In R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 46, the Supreme Court confirmed that the decision whether to make sentences consecutive or concurrent is to be accorded the same deference as the decision regarding the length of sentence: see also R. v. Gillis, 2009 ONCA 312, 248 O.A.C. 1, at para. 9; R. v. Houle, 2008 ONCA 287, at para. 4. Nor is there an absolute rule that drugs and weapons convictions must attract consecutive sentences in all cases: R. v. Borecky, 2013 BCCA 163, 298 C.C.C. (3d) 180, at para. 25.

[35] The trial judge considered this issue carefully. She concluded that the guns in this case were not a “tool of the trade” for the respondent in his drug trafficking business, as they were in the Wong case. However, in formulating the global sentence, she took into account the fact that guns and drugs are a “toxic combination”: R. v. Wong, at para. 11. Accordingly, she did not commit a reversible error by making the sentences concurrent rather than consecutive.

Conclusion

[36] It is in circumstances such as these, where a higher sentence could have been imposed, that appellate courts must heed the strong direction of the Supreme Court of Canada to accord deference to trial judges’ sentencing decisions.

[37] In my view, the sentence imposed by the trial judge was not demonstrably unfit and should be accorded the deference of this court. I would grant leave to appeal sentence but dismiss the appeal.

Released: “MT” June 9, 2014

“K. Feldman J.A.”

“I agree. M. Tulloch J.A.”

“I agree. P. Lauwers J.A.”