Court File and Parties

Court of Appeal for Ontario Date: 20210507 Docket: C68388

Hoy, Hourigan and Zarnett JJ.A.

Between: Her Majesty the Queen Respondent

And: Joshua Nuziato Appellant

Counsel: Joshua Nuziato, acting in person Christina Malezis, for the respondent

Heard: May 4, 2021, by videoconference

On appeal from the sentence imposed by Justice Fergus C. ODonnell of the Ontario Court of Justice on May 28, 2020.

Reasons for Decision

[1] The police received information that the appellant was trafficking cocaine. During their investigation of the appellant, the police obtained a search warrant and searched his pickup truck. They seized a bag containing a package with 21 one-ounce baggies of cocaine and a second package containing twenty grams of cocaine. The police also seized $11,480 in cash. The appellant entered a plea of guilty to a charge of trafficking in a Schedule I substance contrary to s. 5(3)(a) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] The Crown’s position was that a term of imprisonment of between five and eight years was a fit sentence. The defence submitted that 2.5 years’ incarceration would be an appropriate sentence, less pre-trial custody credit and a reduction due to the COVID-19 pandemic, plus a period of probation.

[3] In his reasons for sentence, the sentencing judge adverted to the appellant’s previous record, which he considered "neither tremendously serious nor irrelevant." The sentencing judge then took into account mitigating and aggravating factors. He considered the following mitigating factors: (i) the guilty plea, (ii) the appellant’s youth, (iii) the fact this was the appellant’s first period of incarceration, (iv) his addiction to cocaine, (v) his history of mental illness, (vi) the progress he made in his rehabilitation while incarcerated, and (vii) the collateral consequences of COVID-19 during his pre-sentence custody.

[4] Regarding aggravating factors, the sentencing judge considered the following: (i) the inherent harmfulness, addictive power and societal impact of cocaine and its trafficking, (ii) the quantity of the cocaine seized, (iii) the commercial nature of that quantity and the seized cash, which demonstrate that the appellant was not a drug addict trafficking at a subsistence level, and (iv) the fact that the appellant was on probation at the time of the offence.

[5] The sentencing judge gave the appellant a twenty-month credit for pre-sentence custody and imposed a sentence of 24 months incarceration, to be followed by a two-year probation term. He also issued a s. 109 order and a DNA order.

[6] Before this court, the appellant submits, in substance, that the sentencing judge erred by imposing an inappropriate sentence, given his guilty plea. He argues that the sentencing judge also gave insufficient weight to the fact that his pre-sentence custody took place during the COVID-19 pandemic. Finally, he submits that the imposition of a probation term was not legally available to the sentencing judge.

[7] We are not persuaded that the sentencing judge erred in imposing his sentence or that the sentence is in any way unfit. The sentence was within the range of sentences imposed in other cases regarding the trafficking of similar amounts of cocaine. On the issue of COVID, the trial judge considered the current circumstances of the Niagara Detention Centre. He noted that the risk of communication of COVID-19 had been addressed by certain policies at the institution and observed that he knew of no inmate or staff member at the prison who had tested positive. Despite those observations, the sentencing judge included the appellant’s incarceration during the pandemic as a mitigating factor.

[8] The imposition of a period of probation was available to the sentencing judge. Under s. 731(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, a court can impose a probation order where the term of imprisonment imposed does not exceed two years. The term of imprisonment is the term imposed by the judge at the time of sentence. Pre-sentence custody is not part of the sentence: R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723. In this case, the sentence imposed did not exceed two years. Therefore, a probation order was available.

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

“Alexandra Hoy J.A.”

“C.W. Hourigan J.A.”

“B. Zarnett J.A.”