COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Mac, 2016 ONCA 379
DATE: 20160518
DOCKET: C57573
Watt, Lauwers and Miller JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Khaun Min Mac
Appellant
Kim Schofield and Melina Macchia, for the appellant, Mr. Mac
Anya Weiler, Geoffrey Roy and Kelvin Ramchand, for the respondent, the Crown
Heard: April 14, 2016
On appeal from the conviction entered by Justice Bruce A. Glass of the Superior Court of Justice on April 29, 2013, and from the sentence imposed on October 17, 2013, with reasons reported at 2013 ONSC 2523.
Lauwers J.A.:
[1] The appellant was convicted of conspiracy to traffic two kilograms of methamphetamine. The evidence against the appellant was based on intercepted communications and observed interactions between the appellant and Mr. Quan Lao, the subject of police investigation. The appellant unsuccessfully challenged the wiretap authorization by way of a pre-trial Garofoli application.
[2] The appellant appeals both conviction and sentence. With respect to his conviction, he argues that the trial judge erred in not permitting him to cross-examine the affiant and sub-affiant on the content of the affidavit that led to the wiretap authorization, and in failing to excise from the affidavit certain allegedly unfounded assertions related to importation.
[3] With respect to his seven year sentence, the appellant argues that it should be varied because trial judge erred in focusing on his dated and unrelated criminal record and ignored his rehabilitative prospects.
[4] The appeal is dismissed for the following reasons.
A. Factual Background
[5] The appellant’s communications with Mr. Lao were intercepted in the course of a police investigation called “Project Nexus”. It was initially focused on several other targets under separate investigation, who had come to police attention through two confidential informants. They provided information that a group of individuals were involved in the importation and production of methamphetamine. The police observed their activities through video surveillance of an apartment building they frequented. Through unforeseen developments explained below, Mr. Lao became a target of Project Nexus and police began to intercept his communications. The police intercepted communications between Mr. Lao and others, including the appellant.
[6] In the course of Project Nexus, an undercover detective posing as a drug dealer seeking to buy cocaine and methamphetamine arranged to purchase two kilograms of methamphetamine from Mr. Lao. The appellant was observed meeting and shaking hands with Mr. Lao shortly before Mr. Lao provided the undercover officer with a sample of methamphetamine. The appellant was charged with conspiracy to traffic two kilograms of methamphetamine; Mr. Lao was the co-conspirator.
[7] The appellant, Mr. Lao, and Mr. Joseph Nestorovski, who was allegedly engaged in a conspiracy to traffic in cocaine with Mr. Lao, were tried together. Mr. Lao entered a guilty plea following pre-trial motions and was not part of the trial.
B. The Chronology of the Investigation Leading to the Request for Authorization
(i) October 2009
[8] Police received information from a first confidential informant (“CI”) that a Mr. Chan was involved in large scale trafficking of drugs. That same CI led police to an apartment building where police learned that Mr. Chan had rented an apartment.
[9] Mr. Chan’s apartment is located in a building which has a sophisticated video surveillance system. The police began to use this system to observe the movements of Mr. Chan and his associates.
(ii) November 2009
[10] Police observed a “flurry” of activity over three days at Mr. Chan’s apartment. A number of individuals, many of whom are later named as the primary targets in the investigation, are observed attending at Mr. Chan’s apartment carrying various bags and boxes. These include: Mr. Sethi, Mr. Suri, Mr. Tahkur, Mr. Pang, and later, Mr. Lao. These bags and boxes were transferred among the various persons attending at Mr. Chan’s apartment and were not left in the apartment for a significant period of time. The police believed that these bags and boxes contained controlled substances and that the targets were engaged in drug trafficking.
(iii) December 2009
[11] Police obtained several number recorder warrants to monitor the telephone activity of the primary targets. These number recorder warrants were extended until April 2010. The police concluded that the primary targets communicated with each other frequently.
[12] The police also obtained a general warrant permitting covert entry to Mr. Chan’s apartment. Inside, they located small amounts of ephedrine and ecstasy, a money counter, packaging material, and a drug testing kit.
[13] Mr. Chan was arrested for impaired driving. Mr. Suri, one of the primary targets, was a passenger in Mr. Chan’s car. Mr. Chan told police he resided in British Columbia and did not disclose his apartment in Ontario. The police seized a phone bill that matched one found in Mr. Chan’s apartment during the police’s covert entry. On the phone bill was what police described as a “debt list” consistent with kilogram level trafficking of cocaine.
(iv) January-March 2010
[14] Police received information from a second CI that Mr. Sethi was in possession of ephedrine, a precursor for making methamphetamine. The CI was unable to tell police the whereabouts of the ephedrine or the methamphetamine lab.
[15] Police conducted physical surveillance of both Mr. Suri and Mr. Sethi. They were unable to uncover any evidence of illegal activity but ascertained that they associated with each other away from Mr. Chan’s apartment.
[16] Police also obtained a tracking device warrant for several of the primary targets. Police installed one tracking device on Mr. Suri’s rental vehicle. The data from this tracking device did not provide any evidence of illegal activity.
[17] Police also installed a covert camera in the hallway outside Mr. Chan’s apartment. This camera was able to confirm that Mr. Suri and Mr. Sethi visited Mr. Chan frequently, carrying various bags.
(v) April 2010
[18] Police conducted an unrelated undercover operation targeting Mr. Lao. Detective Thai Truong met Mr. Lao at a parole office and posed as a low-level dealer. Mr. Lao, whom the police suspected was a high level dealer, agreed to sell Detective Truong four ounces of cocaine. Analysis of the number recorder warrants data revealed that Mr. Lao had been in communication with Mr. Sethi and Mr. Suri. Mr. Lao was also observed attending Mr. Chan’s apartment in the company of Mr. Sethi and Mr. Suri.
[19] Police concluded that Detective Truong could be used to “stimulate” activity within the group by making more low-level buys. However, given his cover story as a low-level dealer, they concluded that it would be unsafe to escalate his involvement in order to directly target the primary targets.
(vi) May 2010
[20] Police concluded they were unlikely to further penetrate what they considered to be a highly sophisticated drug trafficking operation using only the investigative means described above. Police applied for a wiretap order against the primary targets named in the application, supported by the affidavit of Detective Nicholas Ibbott dated May 18, 2010.
C. The Garofoli Application
[21] The appellant and his co-accused brought a pre-trial Garofoli application challenging the admission of wiretap evidence under s. 8 of the Canadian Charter of Rights and Freedoms, on the basis that the interceptions constituted an unreasonable search or seizure: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421. They argued that the police did not lay a proper foundation to show investigative necessity for the wiretaps.
[22] To assist in arguing the Garofoli application, the appellant and his co-accused moved for leave to cross-examine the affiant (Detective Ibbott) and the sub-affiant (Detective Truong) on the affidavit. This was denied, for reasons reported at 2013 ONSC 1951. The appellant’s Garofoli application was also denied.
D. The Issues
[23] There are four issues in this appeal:
Did the trial judge err in refusing the appellant leave to cross-examine the affiant and the sub-affiant on the affidavit filed in support of the application for authorization?
Did the trial judge err in dismissing the Garofoli application?
Did the trial judge err in not excising references to importation from the affidavit?
Did the trial judge err by imposing a seven year sentence?
(1) Did the trial judge err in refusing the appellant leave to cross-examine the affiant and the sub-affiant on the supportive affidavit?
[24] Section 186(1) of the Criminal Code provides that an authorization to intercept a private communication may only be given on the following grounds:
- (1) An authorization under this section may be given if the judge to whom the application is made is satisfied
(a) that it would be in the best interests of the administration of justice to do so; and
(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.
[25] The appellant sought leave to cross-examine the affiant and sub-affiant in order to explore whether the pre-conditions of s. 186(1)(b) had been met, whether “other investigative procedures have been tried and have failed”, and whether “other investigative procedures are unlikely to succeed.” The appellant argued that “cross-examination would have assisted the trial judge in determining whether investigative necessity was satisfied by the affiant/sub-affiant, while also providing a factual foundation for any analysis, or findings made under s. 24(2) of the Charter.”
[26] The trial judge refused leave to cross-examine the affiant. The appellant asserts that he erred in doing so. The appellant argues that the test for granting leave to cross-examine was satisfied – that is, “that there is a reasonable likelihood that cross-examination would assist the Trier of Fact in determining a material issue”.
(a) The Governing Principles on Leave to Cross-Examine
[27] The governing principles on leave to cross-examine were canvassed by this court in R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 39, per Watt J.A.:
An accused does not have an absolute right to cross-examine the affiant. Leave to cross-examine is required. And leave is not granted, just for the asking. To obtain leave to cross-examine the affiant, an accused must show that the proposed cross-examination will elicit testimony that tends to discredit the existence of a pre-condition to the issuance of the warrant, as for example, reasonable and probable grounds: . [citations omitted.]
[28] In R. v. Pires; R. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, Charron J. explained, at para. 40:
[T]he Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous - it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review - whether there is a basis upon which the authorizing judge could grant the order.
[29] As this court recently noted in R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, it is not the reviewing judge’s task to conduct a re-hearing and substitute his view for that of the authorizing judge. The reviewing judge’s task is more circumscribed. The court noted, at para. 87:
The task for the reviewing judge, as framed by Garofoli and subsequent authorities, is to determine whether on the supportive affidavit, as amplified by evidence adduced on the review, there was sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing judge could have concluded that the probable cause requirement had been met.
(b) The Trial Judge’s Ruling
[30] The trial judge denied the motion for leave to cross-examine the affiant and the sub-affiant. He rejected, at para. 3, the applicants’ arguments that: the affiant did not lay a proper foundation for the authorization; the police “went to an interception of private communications prematurely”; and that the police “took the easy road rather than conducting regular police investigatory procedures.”
[31] The trial judge rejected these criticisms of the investigation, noting, at para. 7:
The only achievement that cross-examination might accomplish would be to grind the officers in cross-examination with questions about what they did or did not do and whether they conducted such police work properly. At the end of the argument, the court will continue to be back to the materials provided to the authorizing judge when she granted permission to intercept private communications. Even if cross-examination is conducted so that one might criticize the officers for the quality of their work, the court will decide whether the information provided is properly founded for the order given. There is no suggestion that the affiant misled the authorizing judge when applying for permission to intercept private communications. In other words, there is nothing to be gained with cross-examination.
(c) The Principles Applied
[32] The trial judge did not err in denying leave to cross-examine the affiant and sub-affiant. On a Garofoli application, leave to cross-examine must be understood in light of the limited scope of review of an authorizing justice’s decision to issue a warrant. As stated by the Supreme Court in Pires; Lisingat para. 40, a reviewing court is only tasked with determining “whether there is a basis upon which the authorizing judge could grant the order.”
[33] The trial judge was required to assess whether the appellant’s proposed cross-examination would tend to undermine one of the pre-conditions for issuing the authorization.
[34] This assessment is by necessity highly contextual and depends upon the facts of each specific case. As in all cases where judges are called upon to make factual findings, deference is owed by reviewing courts. I would repeat this court’s admonition in Beauchamp, at para. 89:
On appeal, we owe deference to the findings of fact made by the reviewing judge in his or her assessment of the record, as amplified on review, as well as to his or her disposition of the s. 8 Charter challenge. Absent an error of law, a misapprehension of material evidence or a failure to consider relevant evidence, we should decline to interfere. [Citations omitted.]
[35] The trial judge clearly understood the reason behind the appellant’s desire to cross-examine the affiants. However, in his opinion, cross-examination would not assist him in deciding the Garofoli application, since the affidavit laid out in sufficient detail the steps taken by the police and the reasons why the investigation took the path it did. In my view, the trial judge’s conclusion is entitled to deference and this ground of appeal must fail.
(2) Did the trial judge err in dismissing the Garofoli application?
[36] The appellant argues that the trial judge erred in holding that the police had established the investigative necessity requirement in s. 186(1)(b) of the Criminal Code. Specifically, the appellant complains that the police used a wiretap authorization as an investigative short-cut in place of conducting a proper investigation.
(a) The Governing Principles
[37] The general governing principles for a Garofoli application, where the underlying charge is conspiracy, were canvassed extensively by this court in Beauchamp, at paras. 79-105. I need not repeat them here but will draw on them briefly.
[38] In Beauchamp this court elaborated on “investigative necessity”, and the notion of “no other reasonable alternative method of investigation”, at paras. 115-129. The court noted particularly, at para. 118, that a wiretap is “not a technique of last resort […] but one of practical necessity in light of the investigative objectives.” Further, at para 119, the court rejected the argument that “investigative necessity cannot be established where the use of other investigative techniques or procedures would likely succeed in establishing the culpability of one of the targets of investigation.” Investigative necessity is to be assessed not on a target-specific basis, but in relation to the investigation as a whole. Finally, at para 121, the court observed that “[t]he nature of the activity under investigation is a crucial factor” in the analysis and that concerted activity by individuals “is often resistant to other investigative procedures that cannot reach the degree of participation and state of mind of those involved.” See also R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 217.
[39] In R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, the Supreme Court discussed investigative necessity in the context of drug trafficking conspiracies. Justice LeBel observed at para. 41 that “[c]atching the ringleaders in drug rings and conspiracies is never an easy task.” He added: “There was, in my view, evidence in the affidavit to negate arguments for other investigative techniques and to make the case that wiretapping was, practically speaking, the only reasonable alternative, taking into account the nature and purpose of this particular investigation.” He concluded, at para. 43: “Here, the police had more need for wiretapping given that they were trying to move up the chain and catch the higher-ups in the operation.” In his view: “This rightly reinforces the investigative necessity made plain by the affidavit materials.”
[40] However, the fact that wiretap authorization might inevitably be required because of the nature of the activity being investigated does not excuse the police from the obligation to establish a firm evidentiary foundation for the authorization through the use of less intrusive methods of investigation. As this court noted in Beauchamp, at para. 126, there should be “no rush to interception”.
(b) The Trial Judge’s Ruling
[41] The trial judge’s reasons for dismissing the Garofoli application are set out in paras. 13-14:
I am satisfied that here the police did follow the required provisions of the Criminal Code by investigating as police normally would. Only after they found that those procedures were not succeeding with results and at the same [time] with information that the drug activity appeared to be taking place, they were able to satisfy the authorizing judge that they needed an additional instrument to gather more evidence. They were at an impasse in effect. That additional process was an order permitting them to intercept private communications. Investigative necessity was made out in the information to obtain the authorization. Granting the authorization was in the best interest of the administration of justice.
Although the applicants have stated that there were other or additional actions that the police could have undertaken, I interpret the submissions to be a wish list of ideal investigative processes and results.
[42] Noting that police must make a decision at some point during their investigation whether to apply for a warrant or not, the trial judge concluded, at para. 14, that “there was a foundation of material upon which the authorizing judge could made an order permitting the intercepts.”
[43] The trial judge took note, at para. 15, of the appellant’s concession that: “that there is evidence of drug trafficking activity” and that although the appellant disputed it, said there was also “evidence of importation as well”.
(c) The Application of the Principles
[44] The trial judge rejected each of the appellant’s criticisms of the police investigation. They were as follows: that the police did not do actual physical surveillance of the targets; they did not conduct more searches of the stash houses and vehicles; that they did not fully use tracking and number recorder warrants; and they did not continue an undercover operation.
[45] The trial judge did not err in rejecting each of these criticisms. He noted the appellant’s arguments amount to little more than a “wish list of ideal investigative processes and results.” As will be seen below, each of these criticisms was adequately addressed in the affiant’s evidence and established that the police had reached an investigative impasse.
(i) The efficacy of video, as opposed to live, surveillance
[46] Details of the live and video surveillance were set out at length in the affidavit. The affiant concluded that physical surveillance would be insufficient to meet the goals of the investigation. The affiant stated, at para. 295 of the affidavit, that physical surveillance would not reveal when and where shipments of drugs were arriving in to Canada, nor would it reveal the identity of unknown parties taking part in the distribution of the drugs.
(ii) More covert searches of alleged "stash house" and vehicles
[47] The police carried out a single covert search of the identified stash house that did not find large quantities of drugs. The affiant explained, at para. 297 of the affidavit, that the video surveillance established the bags suspected of containing large amounts of drugs were not kept at the residence for long periods of time. For this reason, the police concluded additional searches of the stash house would not advance the investigation.
(iii) The use of tracking devices
[48] The police installed one tracking device in a rental vehicle that was soon returned to the rental agency. The affiant stated, at para. 301 of the affidavit, this investigative technique has limited utility because it could only confirm that the targets associated with one another. However, the investigation had already established that the primary targets associated with one another, and the use of more tracking devices could not have advanced the investigative goals of the project.
(iv) Number recorder orders
[49] The appellant argues that the police could have used number recorder warrants more extensively. The number recorder warrant did produce positive results, as Bird J. outlined in R. v. Sethi et al., 2015 ONSC 684. In that related case, Bird J. dismissed a Garofoli application brought by the some of the primary targets. Justice Bird held, at paras. 60-61, that the number recorders established that Mr. Sethi had been in regular phone contact with Mr. Chan, Mr. Lao, and Mr. Suri. However, as the affiant explained at para. 298 of the affidavit, this method also has limitations. The result of number recorder warrants could only reveal with whom the targets communicated, but reveals nothing about the contents of their communications.
(v) The efficacy of the undercover operation
[50] The initial undercover operation targeting Mr. Lao was unrelated to Project Nexus. However, once Mr. Lao’s association with the primary targets became known, this undercover operation was folded into Project Nexus. By this time, the undercover officer’s cover story had already been established. As the affiant explained, at para. 187 of the affidavit, “Det. Truong was not portraying himself as the same level of drug dealing as Lao”. This is evident from the fact that the undercover officer only arranged to purchase four ounces of cocaine from Mr. Lao.
[51] The affiant explained that the undercover officer’s undercover work would be of limited utility on its own. While capable of showing that Mr. Lao was involved in trafficking cocaine, the affiant explained that Mr. Lao did not reveal the identity of his supplier(s). This link was only provided by the video surveillance of Mr. Chan’s apartment. The affiant explained that without the ability to listen to Mr. Lao’s phone calls, the undercover officer’s involvement was unlikely to reveal the desired information.
[52] The affiant also explained that it would be dangerous to escalate the undercover officer’s involvement. He pointed out that the primary targets were being investigated for large-scale manufacturing and importation of drugs. To have the officer attempt to escalate his involvement from a low-level cocaine dealer to directly involve the primary targets would raise “red flags”. The affiant was particularly concerned with the fact that one of Mr. Chan’s co-accused in a separate drug investigation had been murdered and that there had been two attempts on the life of Mr. Sethi.
(vi) Conclusion
[53] In my view, the trial judge correctly concluded that the police had gone as far with their investigation as they could without a wiretap authorization. Taken together, it is clear from the affiant’s evidence that the police had reached an investigative impasse.
[54] To summarize, the undercover operation could not be escalated due to the risk to the undercover officer. Physical and video surveillance, the number recorder warrants, and the tracking devices were unlikely to reveal anything more than known associations. Lastly, any additional covert entry into Mr. Chan’s apartment was unlikely to find any large quantities of drugs since the drugs were not stored there for any lengthy period of time.
[55] The appellant would have this court look at each individual technique in isolation and question why the police did pursue each to its utmost. But the appellant’s approach is flawed. The investigative necessity inquiry is contextual and must focus on the investigation as a whole, not examine each individual technique under a microscope. The police were dealing with a sophisticated criminal conspiracy that had proven resistant to traditional investigative techniques. Investigative necessity dictated that a wiretap authorization was the only realistic method by which the police could identify the ring leaders.
[56] The police did not rush to obtain a wiretap authorization in this case. They conducted a thorough and extensive operation and reached an impasse. The trial judge assessed the application as a whole and concluded that there was a basis upon which the authorizing judge could issue the wiretap authorization. I see no basis to disturb this assessment on appeal.
(3) Did the trial judge err by not excising information about importation from the affidavit?
[57] As noted above, the trial judge concluded, at para. 14, that the affidavit disclosed evidence of importation. The appellant argues that the trial judge’s conclusion on this point is flawed since there was no evidence independent of the two CIs corroborating this fact. Accordingly, the appellant argues that the trial judge erred by not excising any reference to importation from the affidavit.
[58] I reject this argument. In essence, the appellant asks this court to look at each individual reference to importation in isolation and decide whether on its own, it supports a finding that importation was taking place.
[59] There are two main problems with the appellant’s argument. First, it ignores the fact that a judge must review an application for authorization in a contextual manner and decide whether, as a whole, there was a basis for the authorization to issue. Second, it ignores the fact that a reviewing judge has no jurisdiction to excise correct information from an affidavit: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 28.
[60] The appellant readily accepts that “the trial judge’s findings are entitled to deference on appeal”. I agree. Given that the appellant has not argued that the CIs’ information was incorrect or false, the trial judge had no jurisdiction to excise that information from an affidavit supporting a wiretap authorization. Moreover, the trial judge’s assessment of whether the affidavit as a whole, including the information from the CIs and from the whole of the police investigation, disclosed evidence of importation is also entitled to deference. As such, I see no reason to disturb the trial judge’s finding that the affidavit disclosed evidence of importation.
(4) Did the trial judge err by imposing a seven year sentence?
[61] The appellant argues that the trial judge erred by imposing a seven year sentence. In support of that argument, the appellant contends that the trial judge erred in finding that the appellant had no prospect for rehabilitation. As evidence that his sentence was disproportionate and therefore unfit, the appellant also points to the fact that he received a sentence similar to the sentences meted out to his co-accused Mr. Lao and Mr. Nesorovski, even though each has a lengthier criminal record.
(a) The governing principles
[62] An appellate court must show deference to a trial judge’s sentence unless an accused can demonstrate that the sentence is demonstrably unfit or show that the trial judge committed an error in principle which had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 44.
[63] Deference is warranted on appeal because the sentencing process is highly contextual. As stated by the Supreme Court in R. v. M.(L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 15, “[t]he 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.”
(b) The trial judge’s decision
[64] The core of the trial judge’s reasons is found at para. 61 of his reasons for sentence:
I conclude that with Mr. Mac denunciation of conspiring to traffic a serious drug, general deterrence to the public from engaging in such activity and a specific sanction to Mr. Mac not to engage in such actions again are important. There is no rehabilitation feature at play here. He has experienced a jail sentence in the past. Any consideration of him caring for his wife as a factor to reduce his sentence is not sufficient to warrant sentence of less than 2 years incarceration.
[65] The trial judge also noted, at para. 62, that “[h]ad the conspiracy advanced to the actual trafficking of methamphetamine, this would have been a crime for profit”. As a result, the trial judge imposed a sentence of seven years on the appellant.
[66] The trial judge also sentenced Mr. Lao and Mr. Nestorovski for conspiracy to traffic. He took into consideration Mr. Lao’s lengthy criminal record for crimes of dishonesty, weapons, and drugs. He also took into consideration the fact that Mr. Lao pleaded guilty prior to trial. However, he concluded that specific deterrence must be emphasized and imposed a sentence of seven years for conspiracy to traffic. Mr. Nestorovski was charged with conspiring to traffic one kilogram of cocaine with Mr. Lao. The trial judge again emphasized specific deterrence and imposed a sentence of six years.
(c) The principles applied
[67] In my view, the appellant’s sentence is neither demonstrably unfit, nor affected by an error in principle that had an impact on his sentence. The trial judge considered the relevant mitigating and aggravating factors. He noted that the appellant’s prior custodial sentence had not deterred him from committing more crimes. Given the societal harm caused by drug trafficking, the trial judge did not err in emphasizing specific and general deterrence.
[68] I would also reject the appellant’s argument that his sentence is disproportionate and therefore unfit because it is similar to those of his co-accused. It is true that the appellant’s co-accused had more substantial prior criminal records. This fact alone does not demonstrate that the appellant’s sentence was unfit. The trial judge considered the appellant’s criminal record and concluded that the appellant did not warrant a non-custodial sentence.
[69] In addition, unlike Mr. Lao, the appellant did not plead guilty. This was a mitigating factor in Mr. Lao’s seven year sentence for conspiracy to traffic. Mr. Nestorovic’s situation was different in that he was charged with conspiracy to traffic a smaller quantity of drugs that the appellant. This explains Mr. Nestorovic’s sentence of six years.
[70] In my view, the trial judge’s reasons show that he was aware of the personal circumstances of each co-accused and crafted a fit and proportionate sentence for each in light of their respective degrees of moral culpability. I see no error in his reasons.
E. Disposition
[71] I would dismiss the appeal from conviction. I would grant leave to appeal, but dismiss the sentence appeal.
Released: May 18, 2016 “DW”
“P. Lauwers J.A.”
“I agree David Watt J.A.”
“I agree B.W. Miller J.A.”