Court of Appeal for Ontario

CITATION: R. v. Waldron, 2015 ONCA 586

DATE: 20150827

DOCKET: FILE C59301

BEFORE: Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jafari Waldron

Appellant

COUNSEL:

Vanessa Carew, for the appellant

Randy Schwartz, for the respondent

HEARD: August 24, 2015

On appeal from the sentence imposed on May 9, 2014 by Justice Jacqueline Loignon of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals his five year sentence and asks that it be reduced to three years less credit for pre-sentence custody. He makes two submissions; first the sentencing judge erred by failing to give him any credit for his “stringent” bail conditions; and second five years is unfit having regard to the potential unconstitutionality of the mandatory minimum sentence of three years for trafficking in firearms.

[2] We do not accept either submission. The appellant was on bail for 32 months. However, even in the first five months, he was not under house arrest, and overall his bail terms were anything but stringent. Indeed he used the time on bail to further his rehabilitative efforts, which the trial judge took into account in the sentence she imposed. Also, the appellant’s counsel at trial did not ask for credit for his client’s bail conditions. Giving credit for time on bail is discretionary. The trial judge did not exercise that discretion unreasonably in not giving credit.

[3] The appellant did not challenge the constitutionality of the three year minimum provision. On this appeal, therefore, we must presume the provision is constitutional. These were very serious offences. The appellant offered to sell six guns. His motive was entirely profit driven. He knew that the proposed sales were illicit and that the guns would be used for criminal purposes. In the light of these aggravating considerations a sentence two years above the mandatory minimum was entirely fit, even in the light of the appellant’s demonstrated efforts to rehabilitate himself.

[4] Finally, in the light of the warrant of committal, which provides one year credit for pre-sentence custody, the appellant does not pursue the argument on the trial judge’s calculations. The trial judge’s sentencing decision was thorough and well-reasoned. We see no error in her decision.

[5] Thus, though leave to appeal sentence is granted, the sentence appeal is dismissed.

[6] The conviction appeal is dismissed as abandoned.