Court File and Parties

Court: COURT OF APPEAL FOR ONTARIO Date: 2021-06-02 Docket: C66220

Before: Watt, Roberts and Zarnett JJ.A.

Between: Her Majesty the Queen, Respondent And: Nigel Lewis, Appellant

Counsel: Mark C. Halfyard, for the appellant Sarah Shaikh and Erryl Taggart, for the respondent

Heard: April 19, 2021 by video conference

On appeal from the conviction entered on May 15, 2018 and the sentence imposed on June 12, 2018 by Justice Marquis S.V. Felix of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from his convictions for importation and possession of cocaine for the purpose of trafficking. He seeks leave to appeal his custodial sentence of three and a half years.

Factual Overview

[2] The following evidence was not contested at trial.

[3] Durham Regional Police carried out a controlled delivery of an intercepted package containing 132 grams of cocaine hidden in packages of preserved fruit sent from Trinidad and Tobago via the United Kingdom. The police obtained a general warrant to follow the package and installed a tracking device that would alert police when the package was opened. The sender of the package was “Andy Thomas” and it was addressed to “Maxene Alexander” at Unit #9 on a street in Oshawa.

[4] When an undercover police officer, disguised as a Canada Post delivery person, arrived at the address, the appellant walked over from #10, which shared a driveway with #9, and asked “Is that for Maxene?”. The officer confirmed that it was. The appellant indicated that “Maxene” was at work and offered to take the package for her. The appellant told the officer that he lived at #10 and went inside #10 to retrieve his driver’s licence. When the officer queried why his licence showed a different address, the appellant reiterated that he lived at #10. The officer asked if “Maxene” was the appellant’s girlfriend. He said she was. The appellant then asked the officer “It’s from Andrew Thomas, right?” and signed for the package before taking it back to #10.

[5] Less than half an hour after the package was delivered, the tracking device was triggered, indicating that the package had been opened. Police immediately battered down the front door and discovered the appellant with another male, Emryis Lewis, who is not related to the appellant, in front of the partially opened package. The individual packets of preserved fruit containing the cocaine had not yet been opened. Both men fled out the back door and were arrested a short distance away.

[6] The owner of #10, Sarah Chapman, testified at trial that she was in a relationship with Emryis Lewis and that the appellant was a friend. She left them in charge of her apartment while she attended to a family emergency. She testified that the appellant did not live at #10. She provided the names of a mother and her daughter who lived at #9, neither of whom was Maxene Alexander. She described #9 as a party house, with people coming and going.

Judgment and Sentence

[7] The appellant’s control of the package containing the drugs having been conceded, the trial judge drew the inference that the appellant had specific knowledge that there were illegal drugs in the package from the circumstances surrounding the controlled delivery. Alternatively, he noted that he could impute knowledge of the contents to the appellant because he was in the midst of opening the delivered package when the police executed the search warrant. The trial judge concluded that the appellant’s guilt was the only reasonable inference arising out of the Crown’s circumstantial case.

[8] The trial judge sentenced the appellant to three and a half years’ imprisonment for importing the cocaine and six months concurrent for possession of the cocaine for the purpose of trafficking. He reduced the sentence by six months to account for restrictive conditions during the appellant’s 18 months on interim judicial release.

Convictions Appeal

[9] The appellant submits that the verdicts are unreasonable because the trial judge failed to consider other equally reasonable inferences that would have led to an acquittal. Those inferences, according to the appellant, included that he was in fact accepting a package on behalf of his girlfriend, whom the Crown failed to prove did not exist, and that the appellant’s presence at #10 and acceptance of the package was fortuitous given the unexpected departure of Ms. Chapman to deal with her family emergency.

[10] We are not persuaded by these submissions.

[11] The appellant takes no issue with the correctness of the legal principles that the trial judge applied in his consideration of all the evidence. The trial judge understood that the Crown’s case was circumstantial and that the appellant’s guilt had to be the only reasonable inference available on the totality of the evidence. He also recognized that an absence of evidence could give rise to a reasonable doubt of the appellant’s guilt. In our view, the trial judge’s determination that the appellant had knowledge, control and, as a result, possession of the drugs was the only reasonable inference available on the evidence, and we share his conclusion.

[12] The Crown’s failure to prove that Maxene Alexander does not exist does not displace the reasonable inference that the appellant was accepting the package on his own behalf or jointly with Maxene Alexander, or, if on her behalf, with knowledge of its contents. Ms. Chapman’s evidence was that nobody by the name of Maxene Alexander lived at #9, and she did not testify that the appellant, her friend, was in a relationship with someone named Maxene. In any event, it was the appellant who was waiting at the door of #10 and who immediately approached the undercover police officer, lying twice about his residence in order to secure possession of the package and asking questions that revealed his knowledge of both the sender and recipient of the package without the officer first advising him. Finally, shortly after the appellant took possession of the package, the police surprised the appellant and Mr. Lewis in the process of opening the package that the appellant suggests belonged to someone else. The appellant and Mr. Lewis then fled out the back door.

[13] It is equally unlikely that the appellant’s presence at #10 was fortuitous. The appellant was friends with Ms. Chapman and her boyfriend, who was with the appellant as he opened the package. There was evidence that the package could be tracked. The two men had charge and control of #10 during Ms. Chapman’s absence and, as noted above, clearly had knowledge of when and from whom the package would arrive. The only reasonable inference is that the appellant was present at #10 in order to receive the package, which he did.

[14] We see no error in the trial judge’s analysis or conclusions.

Sentence Appeal

[15] The appellant submits that the sentence imposed is demonstrably unfit. Specifically, the appellant argues that the trial judge erred by imposing a sentence well outside the range for smaller amounts of cocaine recommended by this court in R. v. Hamilton (2004), 2004 ONCA 5549, 241 D.L.R. (4th) 490 (Ont. C.A.). The appellant was convicted of importing 132 grams of cocaine. He argues, however, that the sentence imposed was more in keeping with sentences for importation in the kilogram range and inconsistent with sentences for smaller amounts of cocaine. The appellant submits that he has effectively served about eleven months and that the appropriate disposition would be time served.

[16] We do not accept these submissions.

[17] First, the three and a half-year sentence was within the range. Although this court in Hamilton indicated that the bottom end of the three to five-year range articulated in R. v. Madden (1996), 1996 ONCA 10212, 104 C.C.C. (3d) 548 (Ont. C.A.), should be adjusted downward when the amount of cocaine falls below one half kilogram, the court did not establish an upper limit for smaller amounts. The cases relied upon by the appellant to establish a lower sentencing range are distinguishable, most notably because the sentences were imposed following guilty pleas. Moreover, as the trial judge rightly noted, the fashioning of a fit sentence is not a mathematical calculation, and the weight of the drugs in issue is only one factor among many to be considered.

[18] In any event, it is well established that a trial judge is not bound by sentencing ranges and is required to impose a sentence that is fit in all the circumstances for the individual offender: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 51 and 60. That is what the trial judge did here. He properly balanced the applicable mitigating and aggravating factors of this case. He recognized that the appellant was a good person and a hard worker, and that he enjoyed considerable support from family and friends. He looked at the seriousness of the offences, the appellant’s dated record for drug trafficking, and his role at the managerial level in planning and executing the offences to avoid detection. While the trial judge fairly determined that the sentencing principles of denunciation and deterrence were paramount, he also took into account the appellant’s prospects for rehabilitation and paid particular regard to the principles of totality and restraint. Moreover, he granted six months’ credit for the appellant’s difficult release conditions and considered the collateral consequences of the sentence, including immigration consequences, even if these did not ultimately affect his final determination.

[19] While it falls at the higher end of the range for the importation of this amount of cocaine in similar circumstances, the sentence imposed was fit. We see no basis to interfere with it.

Disposition

[20] The appeal from conviction is dismissed. While leave to appeal sentence is granted, we dismiss the appeal.

"David Watt J.A."

"L.B. Roberts J.A."

"B. Zarnett J.A."