Court of Appeal for Ontario

Date: 2018-10-04 Docket: C63735

Judges: Pepall, Lauwers and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Volkan Kizir Appellant

Counsel

Ian B. Kasper, for the appellant

Narissa Somji, for the respondent

Heard: September 20, 2018

On appeal from the sentence imposed on February 17, 2017 by Justice K. Phillips of the Superior Court of Justice.

Reasons for Decision

Background

[1] The appellant was convicted of 23 drug and weapons related offences, including conspiracy to traffic heroin, cocaine, and methamphetamine, dangerous possession of weapons, conspiracy to assault, and money laundering. He received a global sentence of 14 years less credit of 2,180 days for time in pre-trial custody. He appeals his sentence.

[2] The appellant worked in partnership with Issa Cheikhezzein running a major drug dealing operation in Ottawa. Cheikhezzein's case proceeded before a different judge, who also imposed a global sentence of 14 years.

[3] The appellant raises three issues on appeal. First, he maintains that the sentencing judge erred in failing to properly apply the principle of parity. He argues that he played a lesser role in the offences than Cheikhezzein did and, accordingly, his sentence should be reduced from 14 to 10 years. Second, he submits that the sentencing judge erred in determining the credit for time spent in pre-trial custody. The appellant claims that he should have received a greater credit for what he asserts were unduly harsh conditions on remand. Finally, he says that the trial judge erred in failing to grant him credit for the time spent on restrictive bail conditions.

[4] Although we granted the appeal with respect to the restrictive bail conditions, we dismissed it in all other respects, with written reasons to follow. These are those reasons.

Parity Principle

[5] The appellant and Cheikhezzein ran their drug dealing operation out of a stash house in Ottawa where they possessed narcotics, significant amounts of cash, handguns, ammunition and bulletproof vests. The investigation into this large-scale joint drug and weapons enterprise took place over a long time. The investigation included the use of wiretaps and surreptitious video surveillance.

[6] Before the sentencing judge, the Crown asserted that the appellant was a full co-conspirator with Cheikhezzein and ought to receive a comparable sentence. Defence counsel argued that while the appellant did engage in a conspiracy to traffic in narcotics with Cheikhezzein, he was a "junior member in that agreement" and should receive a lesser sentence. In particular, the defence argued that it was Cheikhezzein who had the connection to Rezai, the man responsible for bringing the drugs to Ottawa, and thus Cheikhezzein had a higher degree of culpability than the appellant.

[7] The sentencing judge rejected the defence position and gave the appellant the same sentence as Cheikhezzein. The appellant submits that the sentencing judge erred in doing so. He claims that the sentencing judge erred by placing excessive weight on the nature of the relationship between Cheikhezzein and the appellant and insufficient weight on their respective roles in the hierarchy, particularly given Cheikhezzein's status as a drug supplier, his close relationship with Rezai, and his involvement with firearm sales.

[8] We disagree.

[9] Section 718.2(b) of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The parity principle is not to be applied in a rigid fashion; it is one of several principles applied in the sentencing of an offender: R. v. Beauchamp, 2015 ONCA 260.

[10] The sentencing judge specifically addressed the parity principle. He considered the totality of the evidence and concluded that the two men were equals in the operation. It was open to the sentencing judge to come to this conclusion. Bearing in mind the totality of the scheme, we see no error in the trial judge's conclusion that the fact that Cheikhezzein received the drugs from Rezai was a distinction without a difference. The trial judge pointed to other factors that showed the appellant in a potentially different but equally culpable role. For instance, the appellant was the person who sold the drugs, presenting himself as someone low down on the drug-dealing ladder in order to deceive customers, he was the person who actually sold heroin to an undercover officer on at least 20 occasions, he was the one who was seen diluting drugs at the stash house, and he was the one captured on video wearing gloves while wiping down a firearm and bullets. The trial judge also had the benefit of watching hours of video and listening to hours of intercepts from the stash house. Having done so, the sentencing judge was in a very good position to come to his conclusion that the men were "equals" in the enterprise and should be sentenced accordingly.

[11] We see no reason to interfere with his conclusion in that regard. The sentence of 14 years was warranted by all of the circumstances and was fit.

Enhanced Credit

[12] The appellant submits that prior to sentencing, he spent 321 days in partial or complete lockdown. He sought a credit of 180 days to account for the time spent in harsh conditions.

[13] The sentencing judge agreed that the appellant should receive enhanced credit for the time spent in lockdown, but stated that it was not possible to calculate precisely the effect of the lockdowns on the appellant. To arrive at the amount of time to be credited, the sentencing judge applied a mathematical formula to a six month period of time. That formula resulted in the appellant receiving an additional 90 days of credit towards his sentence, over and above what he would have received had the typical 1.5:1 calculation been applied.

[14] The respondent acknowledges that enhanced credit was available in the circumstances of this case, but argues that there was no error in the sentencing judge's approach or in the amount of credit given.

[15] We agree. There is no one formula or approach to determining credit for harsh conditions. The sentencing judge was clear that he was using a "broad brush" approach. The sentencing judge was entitled to adopt the methodology he did. Applying that methodology, he considered the additional 90 days of credit (above what a 1.5:1 calculation would permit) to appropriately reflect the harsh conditions presented by the lockdowns. We would defer to that conclusion.

Credit for Restrictive Bail Conditions

[16] Lastly, the Crown agreed at trial that the appellant should be given an additional credit of 177 days for the period of time he spent under restrictive bail conditions. Although the sentencing judge acknowledged the restrictive bail conditions, he did not address the Crown concession that 177 days of credit should be granted. Before this court, the Crown fairly concedes that that additional credit should be given. In these circumstances, 177 days credit is given to the appellant on account of restrictive bail conditions.

Disposition

[17] For these reasons, leave to appeal sentence is granted, the appeal from sentence is granted in part to allow for an additional credit of 177 days for pre-trial custody, making for a final sentence of 14 years imprisonment less 2,357 days.

"S.E. Pepall J.A."

"P. Lauwers J.A."

"Fairburn J.A."