Court of Appeal for Ontario

Date: July 3, 2018 Docket: C61392

Judges: Lauwers, van Rensburg and Nordheimer JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Sadyk Sadikov Appellant

Counsel

For the Appellant: Dirk Derstine and Karen Heath

For the Respondent: Amber Pashuk and Amanda Hauk

Hearing and Appeal

Heard: June 25, 2018

On appeal from: The convictions entered on June 5, 2015 and the sentence imposed on July 6, 2015 by Justice Julie A. Thorburn of the Superior Court of Justice, sitting without a jury, with reasons for judgment reported at 2015 ONSC 3653 and reasons for sentence reported at 2015 ONSC 4447.

Decision

Nordheimer J.A.:

Background

[1] Mr. Sadikov was convicted on 18 counts relating to the seizure of drugs and a firearm. Ultimately, the appellant was sentenced on 11 counts with the other seven counts being conditionally stayed by the operation of the Kienapple principle. The sentence imposed was three and one-half years on the firearm offences and four years consecutive on the drug offences reduced, on a global basis, to seven years. The appellant appeals both conviction and sentence.

[2] The background facts can be briefly stated. The police were engaged in an undercover operation known as Project Hidden Dragon. Between June 6, 2008 and October 20, 2008 undercover officers observed drug trafficking and use at Club 338, located at 338 Adelaide Street West in Toronto. One undercover officer engaged in drug transactions with a man who called himself "Alex". There was no dispute that the appellant is "Alex".

[3] October 20, 2008 was the "takedown" day. In the early morning hours, the police arrested a number of people including the appellant. At the same time, the police executed a search warrant on the second floor apartment at 306 Adelaide Street West, an address that the police believed was linked to the appellant. In the apartment, the police seized a large quantity of drugs and a firearm.[1]

[4] At his first trial, the appellant successfully challenged the search warrant. The evidence of the drugs and the gun was excluded and the appellant was acquitted. The Crown appealed. This court reversed the quashing of the search warrant and ordered a new trial.

[5] On this second trial, the appellant again challenged the search warrant. He asserted that his s. 8 Charter rights had been breached and sought an order excluding all evidence obtained from the search warrant, i.e. the drugs and the firearm. The trial judge denied the appellant's s. 8 application. The evidence was admitted at trial and the appellant was convicted.

[6] The appellant appeals his conviction on three main grounds: (i) the trial judge erred in finding that there was no s. 8 breach; (ii) the trial judge's release of amended reasons for judgment disclose an after-the-fact justification for the decision; and (iii) the verdict was unreasonable. The appellant also seeks leave to appeal his sentence on the ground that the sentence imposed was harsh and excessive.

Conviction Appeal

Section 8 Charter Rights and Search Warrant

[7] In terms of the alleged s. 8 breach, the trial judge heard evidence from the affiant of the Information to Obtain ("ITO") along with two sub-affiants. She also had other material relating to the search warrant including the notes of various officers. After reviewing the ITO (with some amplification) and all of the evidence adduced on the motion, the trial judge held that there was sufficient reliable evidence that might reasonably be believed. The trial judge concluded, at para. 95:

I also believe there was sufficient reliable evidence that might reasonably be believed that the warrant could be issued to search the upper level apartment of 306 Adelaide Street West.

[8] We do not see any error in the trial judge's conclusion regarding the search warrant. There was ample evidence connecting the appellant to drug trafficking and to the second floor apartment at 306 Adelaide. Not only was the appellant seen entering and leaving that location on more than one occasion, there were the various other salient facts including: (i) the admitted evidence of the appellant's girlfriend (and co-accused) that the appellant lived in the apartment up to the week prior to the execution of the search warrant; (ii) two pit bull dogs were seen in the window of the second floor apartment and the appellant was known to own two such dogs; and (iii) male clothing of a size and type that the appellant was known to wear was found in the apartment. There was sufficient evidence, therefore, to connect the second floor apartment to the appellant and to believe that evidence relating to drug trafficking would be found in the apartment.

Amended Reasons for Judgment

[9] In terms of the second ground of appeal, there were two sets of reasons delivered by the trial judge. The original reasons for judgment were sent to counsel by email on June 10, 2015. An amended set of reasons for judgment, with a particular series of corrections, was released on June 16, 2015. The corrections resulted from an email sent by Crown counsel to the trial judge (and copied to defence counsel) pointing out an error in the original reasons. The error was that the first set of reasons referred to the apartment as "apartment 302" at 306 Adelaide. There was no such apartment. The trial judge released amended reasons changing those references in the original reasons to "the second floor apartment".

[10] Unfortunately, these changes were made to the reasons before counsel for the appellant had an opportunity to make submissions on the subject. That ought not to have happened. However, I do not see any prejudice to the appellant arising from the amendments to the reasons. In particular, and contrary to the appellant's submissions, I do not view the changes as substantial. The changes were clearly made to address an obvious error in the description of the apartment. They did not, in any way, alter the substantive reasoning or conclusion. There is no foundation for the suggestion that these changes reflect an after-the-fact justification for the decision: R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267.

Unreasonable Verdict

[11] In terms of the third ground of appeal, there is also no foundation for the assertion that the result at trial was unreasonable. The trial judge concluded that a finding of guilt was the only reasonable conclusion available on the totality of the evidence. The trial judge's finding in that regard was not an unreasonable one. The trial judge provided point by point reasons for why she concluded that the only reasonable inference to be drawn from the evidence, as a whole, was that the appellant had possession of the drugs and the gun found in the second floor apartment. The appellant's dissection of the reasons, showing that any given fact might allow for more than one inference, misses the point. It is the totality of the evidence that must be considered. Further, circumstantial evidence "does not have to totally exclude other conceivable inferences": R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 56.

Sentence Appeal

Consecutive Versus Concurrent Sentences

[12] On the sentence appeal, the appellant submits that the total sentence of seven years was unreasonable and excessive. In particular, the appellant says that the trial judge erred in imposing sentences for the firearm offences consecutive to the drug sentences.

[13] Generally, sentences for offences arising out of the same transaction or incident should be concurrent: R. v. Gummer, 1 O.A.C. 141 (C.A.), at para. 13. In reaching that determination, the court must determine if "the acts constituting the offence were part of a linked series of acts within a single endeavour": R. v. Li, 2009 BCCA 85 at para. 42. If so, concurrent sentences are appropriate. There is an exception to that normal rule, however, as this court explained in Gummer. That exception applies where the offences constitute invasions of different legally protected interests. The trial judge justified the consecutive sentences, in this case, on that basis.

[14] This issue was addressed in R. v. Delchev, 2014 ONCA 448, 323 O.A.C. 19. That case involved a similar combination of drugs and guns. The trial judge imposed a global sentence of 42 months. The Crown appealed and submitted that the sentence ought to have been seven years. In doing so, the Crown specifically submitted that the drug sentences ought to have been consecutive to the firearms sentences. This court rejected that argument, finding, at para. 34, that there was no "absolute rule that drugs and weapons convictions must attract consecutive sentences in all cases".

[15] This point was also made in R. v. Borecky, 2013 BCCA 163, 298 C.C.C. (3d) 180 where Hinkson J.A. said, at para. 25:

I do not agree that sentences must be consecutive in all cases where an offender is convicted of both drug and weapons charges and see no error on the part of the sentencing judge in declining to apply such an imperative, which is not supported by legislation or case law.

Appellate Deference to Sentencing Discretion

[16] The decision to impose consecutive as opposed to concurrent sentences is a matter of discretion for the sentencing judge. An appellate court ought not to interfere with that decision unless it reflects an error in principle. As Sopinka J. said in R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 46:

In my opinion, the decision to order concurrent or consecutive sentences should be treated with the same deference owed by appellate courts to sentencing judges concerning the length of sentences ordered. The rationale for deference with respect to the length of sentence, clearly stated in both Shropshire and M. (C.A.), applies equally to the decision to order concurrent or consecutive sentences. In both setting duration and the type of sentence, the sentencing judge exercises his or her discretion based on his or her first-hand knowledge of the case; it is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed a sentence which, considered in its entirety, is demonstrably unfit.

[17] I see no error in principle in the trial judge's conclusion. There are clearly different legally protected interests in play in this case. On the one hand, society has an interest in ensuring that people do not possess illegal substances (much less traffic in them). On the other hand, society also has a separate interest in ensuring that persons do not possess illegal firearms. While the fact that the gun was found in the execution of a search focussed on drugs might well have justified a concurrent sentence for the drug and gun offences in this case, the imposition of consecutive sentences cannot be said to be an error in principle. In the end result, the global sentence imposed is always subject to the totality principle.

[18] In my view, the overall sentences that the trial judge fixed for the drug offences (4 years) and for the firearms offences (3 ½ years) were within the accepted range, although at the low end for the drug offences given the quantities involved. There is no reason to conclude that the total sentence of seven years, after the trial judge applied the totality principle, was other than a fit sentence.

Conclusion

[19] The conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is also dismissed.

Released: July 3, 2018

"I.V.B. Nordheimer J.A."

"I agree. P. Lauwers J.A."

"I agree. K. van Rensburg J.A."

Footnotes

[1] There were almost three kilograms of methamphetamine/MDMA found along with a kilogram of ketamine. In total, approximately 39,000 individual doses of drugs were found with a value estimated at $675,000.