Court of Appeal for Ontario

Date: 2017-11-03 Docket: C61195

Judges: Laskin, Feldman and Blair JJ.A.

Between

Her Majesty the Queen Respondent

and

Jason Regis Appellant

Counsel

Paul Alexander, for the appellant

Brendan Gluckman, for the respondent

Heard and Released

Heard and released orally: October 25, 2017

On appeal from the conviction entered on June 24, 2015 and the sentence imposed on October 16, 2015 by Justice J.K. Kerrigan-Brownridge of the Ontario Court of Justice.

Reasons for Decision

[1] The Crown concedes that the two convictions for possession of the proceeds of crime cannot stand. Those convictions will be set aside, and acquittals entered.

[2] On the convictions for possession for the purpose of trafficking we are satisfied that the trial judge had a reasonable basis to uphold the issuance of the warrant and that the police had reasonable grounds to arrest the appellant and conduct the searches incident to arrest.

[3] Apart from the proceeds convictions the conviction appeal is dismissed.

[4] The appellant seeks to reduce his sentence to avoid the immigration consequences flowing from it. He is subject to deportation proceedings and will not be entitled to an appeal should a deportation order be made.

[5] The appellant was sentenced to 14 months' imprisonment on each of the two counts of possession for the purposes of trafficking. He argues that even for non-first offenders, the range of sentence for such offences is from six months to two years less a day see: R. v. Woolcock [2002] O.J. No 4927 (C.A.) at para. 15. He proposes that the sentences each be reduced to six months less a day to run consecutively for a global sentence of 12 months less two days.

[6] We are prepared to adopt this proposed disposition in the circumstances of this case. The authorities accept that the risk of deportation can be a factor to be taken into account in choosing appropriate sentencing dispositions and in tailoring the sentences to fit the crime and the offender see: R. v. Hamilton (2004), 72 O.R. (3d) 1, at para. 156 (C.A.). At the same time, courts cannot impose inadequate or artificial sentences in an inappropriate attempt to circumvent problems at will in immigration matters see: R. v. Bhadwar, 2011 ONCA 266, at para. 45.

[7] We think that justice is properly served in this case by imposing a sentence of six months less one day on each of the two counts of possession for the purposes of trafficking to run consecutively. This constitutes a global sentence of 12 months less two days which is not a marked departure from the otherwise appropriate global sentence of 14 months imposed by the trial judge.

[8] The convictions on the two counts constitute separate offences and, looked at individually, relate to two different situations (possession in the car at the time of the arrest, and possession in the house at the time of the search). When considered in their overall context, however, they in reality relate to the same pattern of drug dealing by the appellant on the same day. The police had observed the appellant conduct three apparent drug transactions from his vehicle that day and had seen him leave from and return to his home in connection with each incident.

[9] We do not think it offends the principles of sentencing by viewing the two offences in their overall context in order to tailor an appropriate disposition to meet the needs of this particular case while, at the same time, preserving an appropriate global sentence overall.

[10] Based on the fresh evidence, which the Crown has not opposed, the appellant is a compelling candidate for such an adjustment in the sentence.

[11] He left Trinidad and Tobago almost 19 years ago as a teenager and has never been back. His family is here, including his spouse and teenage daughter. While he has a prior conviction for a similar offence, it is somewhat dated.

[12] Since his conviction, he has made significant strides towards rehabilitation. He has been on bail pending appeal since 2015 with no issues; it has been over three years since the offences before the court, and the appellant has not reoffended. He has expressed remorse and stated his commitment to abide by the law in order to be a positive force in his daughter's life. He has pursued a career as a carpenter and contractor, and has completed additional skills training. He has contributed to numerous charities and community groups as both a donor and a volunteer. His spouse and his daughter are both Canadian citizens.

[13] In the circumstances, therefore, we grant leave to appeal sentence, allow the appeal and vary the sentences imposed to six months less one day on each count of possession for the purposes of trafficking to run consecutively.

"John Laskin J.A."

"K. Feldman J.A."

"R.A. Blair J.A."