COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McIntyre, 2016 ONCA 843

DATE: 20161109

DOCKET: C59713

MacPherson, Cronk and Watt J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shaun McIntyre

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Jason J. Wakely, for the respondent

Heard: November 1, 2016

On appeal from the conviction entered on October 25, 2014 and the sentence imposed on November 10, 2014 by Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury.

By the Court:

[1] After a jury trial, the appellant was convicted of trafficking one kilogram of cocaine and sentenced to imprisonment for a term of eight years less credit of 24 days for time spent in pre-disposition custody. He appeals his conviction and seeks leave to appeal his sentence.

[2] At the conclusion of argument, we dismissed the appeal from conviction, granted leave to appeal sentence, allowed the appeal from sentence and reduced the sentence to a term of five years. These are our reasons for having done so.

The Background

[3] The circumstances surrounding the commission of the offence fall within a narrow compass.

[4] On March 28, 2011, the appellant met Christopher Dawson in a parking lot in St. Catharines. He delivered to Dawson a one kilogram brick of cocaine contained in a grocery bag. Surveillance officers were present in the parking lot, saw the transaction and arrested both Dawson and the appellant.

[5] The appellant testified at trial. He claimed that he did not know that the bag contained cocaine. He said that he had met another man, Justin Bernard, with whom he (the appellant) had had previous dealings. The purpose of his meeting with Bernard, the appellant explained, was to buy from Bernard a kit of Human Growth Hormone (HGH), something he had bought from Bernard on a prior occasion. But Bernard had no HGH kit to deliver. Instead, Bernard asked the appellant to deliver a package of protein bars to Bernard’s friend, Dawson. As it turned out, the package the appellant delivered contained the one kilogram of cocaine police seized from Dawson.

[6] The crucial issue at trial was whether the appellant knew that the bag he delivered to Dawson on March 28, 2011 contained cocaine. The appellant’s denial of knowledge that the bag contained cocaine was the core of his defence that he had been used as an unwitting dupe – a mule – by Bernard and another man and fellow trafficker, Ruska.

The Appeal from Conviction

[7] In his factum, the appellant advanced three grounds of appeal against conviction. Each asserted an error in the charge to the jury. The appellant says that the trial judge erred:

i. by failing to correct misstatements of evidence made by the trial Crown (not Mr. Wakely) in her closing address to the jury;

ii. by instructing the jury that comments made by defence counsel at trial (not Mr. Halfyard or Ms. Vandebeek) about the manner in which jurors should approach circumstantial evidence were wrong; and

iii. by failing to adequately put the position of the defence to the jury.

[8] In oral argument, the appellant did not pursue the third ground of appeal and we shall say nothing more about it.

Misstatements of Evidence by Crown Counsel at Trial

[9] The first ground of appeal focuses on what are said to be three misstatements by the trial Crown about certain aspects of the evidence adduced at trial. We have considered these alleged misstatements not only individually, but also cumulatively, and have concluded that none required correction by the trial judge in his charge.

[10] The first was in response to a submission made by trial counsel for the appellant who addressed the jury first. The submission related to a transaction between Bernard and the appellant that had occurred more than two weeks before the transaction with which the appellant was charged. This evidence formed part of the narrative of relevant events, and was not the subject-matter of the count with which the appellant was charged. It could have had no effect on the verdict.

[11] The second concerned the quantities of drugs trafficked by Bernard and by Ruska. Bernard was Ruska’s source of cocaine. The appellant wanted more than what Ruska had delivered to an undercover officer. When the proposed deals reached the kilo level, Ruska recruited Bernard. It was open to the Crown to suggest to the jury that Bernard was required to complete deals at the kilogram level.

[12] The third dealt with the meaning to be assigned to terms used by the various individuals in their guarded communications intercepted by investigators. The appellant says that the trial Crown told the jury that an expert witness had testified that the phrase “r units” meant “three kilos of cocaine”. The expert testified that “r units” meant “three units”. As we read the address of the trial Crown, it was her submission that the jury should find that the communication referred to cocaine in light of the evidence as a whole, not an assertion that the expert witness had testified to that effect.

Correction of Defence Counsel

[13] The second ground of appeal alleged that the trial judge erred in correcting a submission made by the appellant’s trial counsel in his closing address to the jury. The trial judge considered that the closing address invited the jury, at least implicitly if not expressly, to consider individual items of circumstantial evidence against the standard of proof required of the evidence as a whole – proof beyond a reasonable doubt. We agree with the trial judge’s characterization of this aspect of counsel’s closing address. Such a submission offends basic principle, as the Supreme Court of Canada explained in R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 354-55, and was properly corrected by the trial judge.

The Sentence Appeal

[14] The appellant also seeks leave to appeal sentence. He submits that the trial judge imposed a sentence – imprisonment for eight years – that failed to give effect to the principle of parity and took into account, as an aggravating factor, unproven allegations of prior trafficking. The appellant also tenders as fresh evidence a Gladue report to found a submission that the sentence imposed fails to reflect the principles that underpin s. 718.2(e) of the Criminal Code.

[15] Before the trial judge, Crown counsel sought a sentence of imprisonment for nine years. Defence counsel submitted that a sentence of imprisonment for five years would meet the ends of justice.

[16] The trial judge considered the appropriate range of sentence to be a term of imprisonment in a federal penitentiary of five to eight years. He reasoned that the appellant’s sentence should be fixed at “the higher end of the range” because of the quantity of the cocaine involved. The trial judge made no reference to Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 or to s. 718.2(e) of the Criminal Code because no reference was made to the appellant’s Aboriginal status at the sentencing hearing.

[17] In our view, the trial judge made three errors in principle in imposing a sentence of eight years, less credit of 24 days for time spent in pre-disposition custody. In brief terms, those errors consisted of:

i. making findings of fact that prior transactions between the appellant and Bernard involved cocaine or methamphetamine in the absence of evidence to support such a conclusion and using that finding as an aggravating factor on sentence;

ii. failing to give effect to the principle of parity in light of the sentences imposed on Dawson and Ruska; and

iii. imposing a sentence of imprisonment at the upper end of the range of sentence without taking into account that the appellant was a first offender.

[18] Section 724(2)(b) of the Criminal Code permits a judge at the conclusion of a jury trial resulting in a finding of guilt to find proven any relevant fact that was disclosed by the evidence at trial. Where the fact to be relied upon is an aggravating fact on sentence, the Crown must establish that fact beyond a reasonable doubt. The trial judge’s finding of prior traffickings rested on speculation from the mere fact of prior meetings between Bernard and the appellant. The trial Crown did not attempt to prove the nature or subject-matter of the prior meetings or suggest that they could serve as aggravating factors on sentence.

[19] The trial judge was aware of the sentences imposed on others involved in this trafficking scheme. Ruska, who pleaded guilty to trafficking in ounce levels of cocaine, received a sentence of five years based on a joint submission. Dawson, who was convicted after a trial, was sentenced to imprisonment for three years. Dawson was Aboriginal. A Gladue report was prepared, relied upon by counsel and filed with the sentencing judge. The Crown sought a sentence of six to eight years for Dawson. Defence counsel, who placed significant emphasis on Dawson’s Aboriginal status and a disability associated with a work-related accident, sought a conditional sentence coupled with a period of probation.

[20] The appellant was a 44-year old first offender who was gainfully employed at the time of his arrest. He remained gainfully employed after his release from custody pending appeal. Neither the materials before the trial judge nor those before this court warranted a sentence at the upper end of the range of sentence applicable to the appellant’s offence for a first offender.

[21] The trial judge did not have the benefit of the Gladue report prepared at the direction of a judge of this court and received as fresh evidence on the hearing of the appeal. We have considered its contents carefully and agree with the appellant that it, together with the other errors identified earlier, warrants a reduction in the carceral portion of the sentence to five years.

[22] The appellant also sought return of a significant amount of cash found in his vehicle after a search incident to arrest. The trial judge considered, as offence-related property, money that the appellant had received from the sale of an item of equipment associated with his business. The trial judge was of the view that, despite its legitimate origins, the money was destined for use in connection with the offence charged – trafficking in cocaine. This conclusion was open to him on the evidence. We see no basis upon which to conclude that he erred in that regard.

CONCLUSION

[23] The appeal from conviction is dismissed. Leave to appeal sentence is granted, the appeal from sentence allowed and the sentence of imprisonment imposed by the trial judge is reduced from 7 years, 11 months and 6 days to 5 years. The ancillary orders, including the order of forfeiture, remain in effect.

Released: November 9, 2016 (JCM)

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“David Watt J.A.”