COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmed, 2016 ONCA 831

DATE: 20161107

DOCKET: C62382

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Metin Kadir Ahmed

Appellant

Metin Kadir Ahmed, acting in person

Nader Hasan, appearing as duty counsel

Sidney Thompson, for the respondent

Heard: November 1, 2016

On appeal from the sentence imposed on June 21, 2016 by Justice Peter H. Wilkie of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant pleaded guilty to a charge of conspiracy to traffic cocaine arising from an investigation into drug trafficking activities in the Niagara region by a group called the Black Pistons Motorcycle Club. He was sentenced to 2 years’ imprisonment, less 8 months credit for pre-sentence custody.

[2] With the assistance of duty counsel, he appeals against sentence on two grounds. He submits that the sentencing judge erred:

1. by imposing a demonstrably unfit sentence that was outside the range and failed to take into account the appellant’s prospects for rehabilitation; and

2. by failing to give credit for the full period of time that the appellant spent on an immigration detention.

[3] We do not accept these submissions.

The First Ground of Appeal

[4] The sentence that was imposed was fit and within the range. This court has indicated that the range of sentence for this type of offence is from 6 months to 2 years: R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 15. The quantity involved in this case was 28 grams of cocaine, which places the offence at the high end of the range. Furthermore, the appellant had a criminal record that included a prior conviction for possession of cocaine for the purpose of trafficking and two further convictions for possession of cocaine. In addition, although the appellant was not a member of the Black Pistons Motorcycle Club, he had an ongoing relationship with it. Thus, as the sentencing judge found, there was a link between this offence and a “larger semi-organised commercial enterprise.”

[5] Moreover, the sentencing judge expressly took into consideration the appellant’s prospects for rehabilitation. Although he considered there to be only a “glimmer of rehabilitative potential”, given the appellant’s history, he was aware that the appellant had broken away from his co-conspirators and left behind that negative peer group by moving to Calgary to live with his father and work in his father’s business.

The Second Ground of Appeal

[6] After the appellant was granted bail on this matter, he was placed in immigration detention for seven and a half months. The sentencing judge gave the appellant full credit for the time that the appellant spent in pre-sentence custody for this offence but only two months’ credit for the seven and a half months of immigration detention.

[7] The sentencing judge fully addressed the issue of how much credit should be given for the immigration detention. He noted that sentencing had been adjourned on a number of occasions to accommodate the appellant’s personal issues, including obtaining information regarding his immigration status. He referred to the information that he had received on the matter and concluded that it was “clear” that the immigration detention was triggered by factors unrelated to the charge for which the appellant was being sentenced. He explained that the appellant’s application for permanent residence had been refused on the ground of serious criminality the year before the charges before the court arose. He indicated that it seemed “logical” to assume that the appellant’s outstanding bail on this charge would have made it harder for the appellant to satisfy his onus in obtaining bail on the immigration detention, but stated that the defence had led no evidence on that matter. Recognizing that the impact was “speculative”, the sentencing judge exercised his discretion and gave the appellant two months’ credit for the period of immigration detention.

[8] In the circumstances, we see no basis for interfering with the sentencing judge’s exercise of discretion.

Disposition

[9] For these reasons, the appeal is dismissed.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“M.L. Benotto J.A.”