Court of Appeal for Ontario

Date: 20231206 Docket: C70921

Judges: Gillese, Brown and Nordheimer JJ.A.

Between:

His Majesty the King Appellant

and

Heath Johnston Respondent

Counsel: Allyson Ratsoy, for the appellant Yaroslav Obouhov, for the respondent

Heard: October 23, 2023

On appeal from the sentences imposed on July 4, 2022 by Justice Elaine Deluzio of the Ontario Court of Justice.

Reasons for Decision

[1] The Crown seeks leave to appeal the total sentences of two years less a day to be served in the community imposed on the respondent following on his convictions for trafficking in cocaine, trafficking in crystal methamphetamine, and possession of proceeds of crime. The respondent was also sentenced to three years probation. The respondent pleaded guilty to the offences. At the conclusion of the hearing, we reserved our decision but requested the parties to file written submissions on whether, depending on the result of the appeal, incarceration of the respondent was warranted. We have now received and reviewed those written submissions.

[2] The respondent was charged with these offences after the police executed a search warrant at three separate residences. Prior to the execution of the search warrant, the respondent had been arrested while in a motor vehicle he was operating. A search of that vehicle discovered one kilogram of cocaine, one kilogram of crystal methamphetamine, and $9,950 in cash.

[3] The respondent has a criminal record that includes convictions for assault, careless storage of a firearm, failures to comply, and possession of drugs. A pre-sentence report discussed steps that the respondent has taken towards his rehabilitation and opined that he was a good candidate for community supervision. The respondent is Indigenous, and the sentencing judge had a Gladue report regarding his background. In addition, it was clear that the respondent had engaged in his drug trafficking to support his own drug addiction issues, which in turn arose from his loss of employment resulting from the pandemic.

[4] The appellant submits that the sentences imposed were demonstrably unfit and that the sentencing judge made errors in principle. We do not need to address the first contention as we agree with the second.

[5] The principal error made by the sentencing judge starts from her conclusion that a three-year global sentence was a “just and appropriate” sentence for the respondent. We note, on that point, that the Crown had asked for a six-year sentence and counsel for the respondent had suggested a three-and one-half-year sentence.

[6] When considering the imposition of a conditional sentence, a court must first decide that the imposition of a sentence of imprisonment of less than two years is fit. If such a sentence is not fit, then a conditional sentence cannot be imposed: R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, R. v. Basque, 2023 SCC 18. Thus, once the sentencing judge had determined that a three-year sentence was fit, a conditional sentence was not available. The conclusion that a penitentiary term of imprisonment was required is reinforced by the fact that both counsel had suggested penitentiary terms of imprisonment in their submissions.

[7] The sentencing judge nevertheless sought to impose a conditional sentence by deducting 12 months and 10 days as credits for pre-trial custody and strict bail conditions, thereby leaving less than two years for the respondent to serve. However, this is not an available route to imposing a conditional sentence because it ignores the point made expressly in Fice, at para. 4: “A conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender spends in pre-sentence custody.”

[8] In following this route, the sentencing judge made an error in principle. As a result, this court is entitled to intervene and, consequently, we must undertake our own sentencing analysis: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 27. As part of that analysis, we recognize that the sentencing judge gave detailed reasons for concluding that a three-year sentence was fit. We would not interfere with her conclusion, even though that sentence falls outside the established range of sentence for trafficking in drugs at the kilogram level. On that point, we note that sentencing ranges are primarily guidelines. They are not hard and fast rules. A judge can order a sentence outside an applicable range if it accords with the principles and objectives of sentencing: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58. The reasons given by the sentencing judge for a three-year sentence are consistent with the principles and objectives of sentencing.

[9] In concluding that a three-year sentence was appropriate, the sentencing judge referred to the Gladue factors, the plea of guilt, the respondent’s expression of remorse, and the steps he has taken towards rehabilitation. These are all strong mitigating factors that can justify the sentencing judge’s conclusion.

[10] Having concluded that the three-year sentence that the sentencing judge selected is fit, the issue then arises whether the appellant should now be incarcerated to serve what would remain of that sentence. There are approximately 16 months left to be served on that sentence after deducting the credits that the sentencing judge allowed and after according the respondent credit for the time that he has spent on the conditional sentence.

[11] We have concluded that the respondent should not now be incarcerated. There is little societal benefit to incarcerating the respondent at this stage, and much that could be detrimental. As already noted, there is only a relatively short period of time left to be served on that sentence. In our view, the situation here mirrors the one in R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.) where Doherty J.A. said, at para. 166: “To impose now, what would have been a fit sentence at trial, would work an undue hardship on the respondents. The administration of justice is best served by allowing the respondents to complete their conditional sentences.”

[12] In the result, leave to appeal is granted, the appeal is allowed, and the conditional sentence is set aside. We would substitute a sentence of 16 months in prison. In the circumstances, we would stay the operation of that custodial sentence and direct that no warrant of arrest or committal issue. Notwithstanding that conclusion, the probation order remains. Given that we are imposing a sentence not exceeding two years, a probation order is still available. On that point, we note that it is the custodial term imposed at the time of sentence that determines whether a probation order can be imposed: R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723, at para. 19.

“E.E. Gillese J.A.”

“David Brown J.A.”

“I.V.B. Nordheimer J.A.”