Court of Appeal for Ontario

Date: 2018-03-02 Docket: C62888

Judges: Strathy C.J.O., Simmons and Hourigan JJ.A.

Between

Her Majesty the Queen Respondent

and

Abdullahi Rage Appellant

Counsel

Faisal Mirza, for the appellant Bari Crackower, for the respondent

Heard: February 28, 2018

Background

On appeal from the conviction entered by Justice Graeme Mew of the Superior Court of Justice on April 29, 2016, with reasons reported at 2016 ONSC 2973, and the sentence imposed on November 3, 2016.

Reasons for Decision

Overview

[1] The appellant was convicted of three counts of trafficking cocaine and one count of possession of cocaine for the purpose of trafficking. He was also convicted of possession of marihuana. The appellant was sentenced to two years' imprisonment, to be followed by three years' probation.

[2] The appellant appeals his conviction and sentence. As part of his sentence appeal, he has brought an application for the admission of fresh evidence.

[3] For the reasons that follow, we dismiss the conviction appeal and the sentence appeal.

Conviction Appeal

[4] On his conviction appeal, the appellant submits that the trial judge: (i) reversed the onus by drawing an adverse inference from his failure to call his employer as a witness; (ii) improperly relied on cross-examination on an affidavit sworn by him as part of a Rowbotham application; and (iii) made adverse factual findings insufficiently grounded in the evidence. We do not give effect to any of these grounds of appeal.

Adverse Inference Submission

[5] The adverse inference submission is based solely on the sentence emphasized below in paragraph 78 of the trial judge's reasons:

[78] Mr. Rage says that Mr. Ahmed owed him $2,500 for a motorcycle. He implied that he had used his employer's resources to purchase the motorcycle and that he (Mr. Rage) owed $2,500 to his employer. There was no evidence from the employer or other evidence corroborating this. Mr. Rage admitted meeting with Mr. Ahmed twice on 5 October 2011 but says he did so just so Mr. Ahmed could tell him, twice, that he did not have the money. It makes no sense.

[79] And despite the fact that he had $3,850 in his apartment, he claimed that his employer had effectively fronted him $2,500 to buy the motorcycle for Mr. Ahmed. Despite his protestations that he needed money from Mr. Ahmed in cash to pay the $2,500 to his "boss", he had significantly more than that amount sitting in his dresser in his apartment.

[6] In our view, there was no reversal of onus and the trial judge did not draw an adverse inference. Rather, he found that the appellant's evidence that sought to justify his meetings with a drug trafficker (Mr. Ahmed) as part of his employment duties was not capable of belief. This was an available finding on the evidence and there is no basis for appellate interference. Read fairly and in context, the impugned sentence in the trial judge's reasons was nothing more than a reference to the available evidence on the point.

Rowbotham Affidavit

[7] The appellant submits that the trial judge wrongly relied upon an apparent inconsistency elicited during his cross-examination on his Rowbotham affidavit in rejecting his evidence about why he rented luxury vehicles. We disagree that he relied on the inconsistency. While the trial judge briefly mentioned the affidavit when reviewing the appellant's evidence, there was no further reference to it in his analysis on this or any other credibility finding. It was open to the trial judge to reject the appellant's explanation that he drove such vehicles as part of his minimum wage job at a car dealership as a matter of common sense and given the expert testimony that use of rental cars is an indication of drug dealing.

Factual Findings

[8] With respect to the other impugned factual findings, we are of the view that they were all grounded in the evidence and available to the trial judge. For example, unchallenged expert evidence supported the finding that two pieces of metal discovered in the appellant's home were part of a cocaine press. The fact that the pieces fit together was also inconsistent with the appellant's position that they were unrelated pieces of metal from his welding class.

Sentence Appeal

Application for Fresh Evidence

[9] We dismiss the application for fresh evidence. In our view, the proposed fresh evidence would not have impacted the decision below as it is largely a reiteration of the information submitted to the trial judge during the sentencing proceeding regarding the appellant's personal circumstances.

Conditional Sentence

[10] The appellant asserts that the trial judge erred in not imposing a conditional sentence. It is well established in the jurisprudence that a trial judge's decision regarding the appropriateness of a conditional sentence is entitled to considerable deference: R. v. Peterson (2005), 201 C.C.C. (3d) 220 (Ont. C.A.), at para. 58.

[11] In this case, it is clear from his reasons for sentence that the trial judge was alive to the applicable factors for the imposition of a conditional sentence but concluded that a penitentiary sentence was warranted and that a conditional sentence would not give sufficient weight to the objectives of general and specific deterrence or adequately denounce the appellant's criminal conduct.

Over-Representation of African-Canadians

[12] The appellant argues that the trial judge erred by not considering the over representation of African-Canadians in the nation's prison system as a basis for ordering a conditional sentence. We note that this argument was not raised before the trial judge, so it is difficult to find fault in his failure to deal with it.

[13] In any event, the comments of this court in R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.) are apt. In that case Rosenberg J.A. found that, "the principles that are generally applicable to all offenders, including African Canadians, are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence and the values of the community from which the offender comes" (para. 32).

[14] We accept the Crown's submission that the flexible approach to sentencing described by Rosenberg J.A. is precisely what happened in this case. The trial judge noted that the sentencing range for possession of a substantial amount of cocaine for the purpose of trafficking was from five to eight years' imprisonment. He then went on to craft a sentence that was well below the range he identified and in so doing, adequately took into account the appellant's particular circumstances.

[15] In summary, we are not satisfied that the trial judge made any error in principle or that the sentence is unfit so as to warrant appellate interference.

Disposition

[16] The appeal is dismissed. The application for fresh evidence is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

"G.R. Strathy C.J.O."

"Janet Simmons J.A."

"C.W. Hourigan J.A."