Court of Appeal for Ontario

Citation: R. v. Nadarajah, 2020 ONCA 85 Date: 2020-02-04 Docket: C65091

Before: Doherty, Watt and Hourigan JJ.A.

Between:

Her Majesty the Queen Respondent

and

Arun Nadarajah Appellant

Counsel: Breana Vandebeek, for the appellant Sandy Thomas, for the respondent

Heard and released orally: January 31, 2020

On appeal from the conviction entered on July 12, 2017 by Justice Katarynych of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was found in possession of 102 grams of powder cocaine and was charged with possession for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. After the trial judge dismissed the appellant’s applications under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms, the appellant conceded the case against him and was convicted.

[2] In her reasons for sentence, the sentencing judge accepted that there were several mitigating factors, including the appellant’s youthfulness; his first offender status; his concession of the case against him; his self-generated rehabilitation; and his family support. However, the sentencing judge rejected other circumstances that defence counsel had presented as mitigating factors. Ultimately the appellant received a sentence of 18 months’ incarceration.

[3] On his sentence appeal, the appellant submits that the sentencing judge erred in finding that a custodial sentence was necessary and failed to give sufficient, if any, weight to the following mitigating circumstances: his history on bail; the fact that jail was not necessary to deter him; the fact that he was a drug-addicted trafficker; and the support available to him from his peer group. It is the appellant’s position that the sentencing judge overemphasized specific deterrence and denunciation in light of the evidence of rehabilitation.

[4] We are not satisfied that the sentencing judge erred in finding that a custodial sentence was necessary in the circumstances. The submissions regarding deterrence, available peer support, and the appellant’s history on bail, were specifically considered and rejected by the sentencing judge, as she was entitled to do. The sentencing judge also found that there was an insufficient evidentiary basis to conclude that drug addiction was a mitigating factor. That finding was also available on the record, especially given that the appellant did not testify on the sentencing hearing.

[5] In our view, the appellant has not met his onus under R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, of establishing that the sentencing judge erred in principle; failed to consider a relevant factor; or erroneously considered or placed undue emphasis on an aggravating or mitigating factor in determining the sentence. The sentencing judge properly balanced the competing factors in her careful and detailed reasons and imposed a sentence that is within the range of fit sentences in these circumstances.

[6] Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“Doherty J.A.”

“David Watt J.A.”

“C.W. Hourigan J.A.”