Court of Appeal for Ontario

Date: 2024-06-24 Docket: COA-24-CR-0197

Judges: Miller, Paciocco and Copeland JJ.A.

Between:

His Majesty the King Respondent

and

Jasper Dieter Appellant

Counsel: Paul Calarco and Michael Bartlett, for the appellant Rodi El Salibi, for the respondent

Heard: June 19, 2024

On appeal from the sentence imposed on November 29, 2023 by Justice Julia A. Morneau of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant seeks leave to appeal sentence and, if leave is granted, appeals against sentence.

[2] The appellant pleaded guilty in December 2022 to possession for the purpose of trafficking of cocaine and MDMA and possession of a firearm and ammunition while prohibited (the “first set of charges”). The facts admitted on the guilty plea included possession of 262 grams of cocaine, 21 grams of MDMA, various other drugs, $31,945 in cash, and a .22 calibre rifle and 10 rounds of ammunition. The items were found during a search with a warrant of the appellant’s residence, where he lived alone. The offence date was in February 2020. The appellant was scheduled to be sentenced on March 20, 2023. He continued on release on an undertaking on the first set of charges pending sentencing.

[3] Four days prior to his sentencing on the first set of charges, on March 16, 2023, the appellant was charged with possession of cocaine for the purpose of trafficking, possession of proceeds of crime, and failure to comply with his undertaking (the “second set of charges”). These charges arose out of a search warrant executed at the appellant’s residence in which 658 grams of cocaine, approximately $98,000 in cash, drug packaging, and digital scales were seized. In addition, a download from the appellant’s cell phone, which was also seized, showed that he had been frequently trafficking cocaine since at least September 2022 and that he had made arrangements for someone to carry on his drug trafficking enterprise in anticipation of his incarceration on the first set of charges.

[4] On March 20, 2023, as scheduled, the appellant was sentenced on the first set of charges. He was sentenced to four years imprisonment and various ancillary orders. He does not appeal sentence on the first set of charges. In October 2023, the appellant pleaded guilty to possession of cocaine for the purpose of trafficking and possession of proceeds of crime on the second set of charges. On November 29, 2023, he was sentenced to seven years imprisonment on the trafficking charge, consecutive to the sentence on the first set of charges, and two years concurrent on the possession of proceeds of crime charge (plus various ancillary orders). This is the sentence under appeal.

[5] The appellant raises one ground of appeal – that the sentencing judge failed to consider and apply the totality principle. He argues that the total sentence of eleven years imprisonment on both sets of charges is unfit.

[6] We are not persuaded that the sentencing judge failed to consider the totality principle. Her reasons for sentence show that she was aware of the sentence imposed on the first set of charges, the circumstances of those offences, and how those circumstances bore on the second set of charges. She considered the circumstances of the offence and the offender and the relevant aggravating and mitigating factors. The sentencing judge was not required to expressly advert to every sentencing principle she applied.

[7] The trial judge’s reasons emphasize the principles of denunciation and deterrence. This was appropriate in the circumstances, particularly given the quantity of drugs involved in the second set of charges, the undisputed evidence that the offences were committed for commercial gain, that the offences were committed while the appellant was on release, and the evidence that he had taken steps to have someone else continue his drug trafficking enterprise in anticipation of his prison sentence on the first set of charges. The combined sentences totaling 11 years were not unfit in light of the circumstances of the offences and the offender and the aggravating and mitigating circumstances.

[8] Leave to appeal sentence is granted but the appeal against sentence is dismissed.

“B.W. Miller J.A.”

“David M. Paciocco J.A.”

“J. Copeland J.A.”