Court of Appeal for Ontario

Date: 2024-07-23 Docket: COA-23-CR-0316

Before: Lauwers, Trotter and Paciocco JJ.A.

Parties and Counsel

Between: His Majesty the King, Respondent And: Lee Marrazzo, Appellant

Counsel: Lee Marrazzo, acting in person Brian Snell, appearing as duty counsel Vanita Goela, for the respondent

Heard: July 11, 2024

On appeal from the conviction entered by Justice Célynne S. Dorval of the Ontario Court of Justice on August 29, 2022, and from the sentence imposed on February 17, 2023.

Reasons for Decision

[1] Lee Marrazzo was convicted of trafficking in narcotics based on the finding that he was a party to a cocaine transaction between his associate, Remo Castelli, and an undercover police agent that occurred on August 12, 2020. By that date, Mr. Castelli had already been identified as a suspect in an ongoing drug investigation, but there had been no indication of Mr. Marrazzo’s involvement. On August 12, 2020, that changed. Mr. Marrazzo was observed by surveillance officers driving Mr. Castelli to the location of a prearranged drug sale. Upon arrival Mr. Marrazzo was observed retrieving the bag later confirmed to contain 1 kilogram of cocaine from the trunk of the car and passing it to Mr. Castelli. Mr. Marrazzo was then observed looking around the parking lot while Mr. Castelli transferred the cocaine to the undercover agent.

[2] A conversation between the men was intercepted. In that conversation the police agent expressed complaints about late changes to the planned transaction, and Mr. Castelli blamed his supplier. Mr. Marrazzo joined in the conversation, claiming that he wanted to go and meet this person and “punch him in the fucking teeth”. He too said, “That driver dicked me around all day”, and he reported that the driver said that “from now on its going to be a day in advance we’re gonna have it.”

[3] Mr. Castelli, who had already pleaded guilty to related offences, testified, claiming in effect that he had asked Mr. Marrazzo to accompany him as backup, and that he had led Mr. Marrazzo to believe that the meeting was about a debt. For compelling reasons, the trial judge rejected Mr. Castelli’s testimony, and she convicted Mr. Marrazzo as a party to the drug transaction. When she sentenced Mr. Marrazzo, she rejected the defence submission that Mr. Marrazzo had played a limited role in the drug transaction as the driver, concluding that in his intercepted comments, Mr. Marrazzo “put himself as the link between the supplier of the cocaine and Mr. Castelli.” She imposed a global sentence of four years imprisonment, after giving Duncan credit for the harsh conditions of incarceration through lockdowns, accepting that the lockdowns would have been particularly hard on him because he suffered from post-traumatic stress disorder.

[4] Mr. Marrazzo argued before us, as his sole ground of appeal from conviction, that the circumstantial evidence before the trial judge left open the innocent inference that he did not know that the transaction he was assisting in involved narcotics, thereby failing to satisfy the standard for conviction set out in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. Duty counsel argued, on his behalf, that the evidence before the trial judge did not eliminate the reasonable inference that Mr. Marrazzo might have believed he was aiding in a loan-sharking transaction.

[5] We do not accept this ground of appeal. Once the trial judge rejected the testimony of Mr. Castelli, as she was entitled to do, the record did not support the loan-sharking theory. The question nonetheless remains whether on the evidence before her, the trial judge was entitled to infer beyond a reasonable doubt that Mr. Marrazzo had the requisite knowledge that he was assisting a narcotics transaction. We are satisfied that there was an ample basis in the evidence to permit her to draw that inference. The evidence showed that the transaction that Mr. Marrazzo assisted was a drug transaction, and on their face, Mr. Marrazzo’s own intercepted comments disclose his involvement in efforts to obtain the commodity to be delivered from the supplier, and his involvement in a discussion about future deliveries. In those circumstances it was entirely reasonable for the trial judge to infer that Mr. Marrazzo knew the nature of the commodity that was being delivered and then trafficked. We therefore dismiss the conviction appeal.

[6] Mr. Marrazzo also sought leave to appeal his sentence. He argued that the trial judge’s finding that he had “put himself as the link between the supplier of the cocaine and Mr. Castelli” was inconsistent with the evidence that Mr. Castelli had dealt with the supplier. His point, of course, is that since Mr. Castelli dealt with the supplier himself, Mr. Castelli did not need to have Mr. Marrazzo link him to the supplier. Mr. Marrazzo argues that he was sentenced based on an unreasonable finding by the trial judge about the role that he played. We do not accept this submission. We are not persuaded that when she described Mr. Marrazzo as “the link between the supplier of the cocaine and Mr. Castelli” the trial judge was labouring under the misconception that Mr. Castelli depended upon Marrazzo to connect with the supplier. The trial judge understood fully that Mr. Castelli had himself dealt directly with the supplier, and she recognized the greater role that Mr. Castelli played when she sentenced him to a longer sentence. The crucial point the trial judge was making is that, given that his own statements confirmed his involvement with the supplier, Mr. Marrazzo did not play the minor role in the transaction that defence counsel was suggesting. He played a significant role in the August 12, 2020 transaction. We see no error in the trial judge’s assessment that “[o]n a sliding scale of moral blameworthiness” Mr. Marrazzo was “at the mid level”.

[7] Mr. Marrazzo also argued that the trial judge erred by failing to give him credit for the hardship he experienced in custody as the result of the delayed response to his medical needs, including the delay in providing him with mental health services and the delay in responding to the urgent and significant dental care he required. We are persuaded that the trial judge did fail to address his unmet medical needs during his incarceration, when evaluating the Duncan credit he should receive. There was ample evidence before her to support this hardship, yet in her Duncan analysis she focused solely on the hardship that lockdowns would cause him. We are satisfied on the trial record that Mr. Marrazzo suffered from these medical hardships unduly as the result of his incarceration and that this warrants further Duncan credit.

[8] We therefore grant leave to appeal sentence, set aside the sentence of 29 months and 5 days, and substitute a sentence of 27 months and 5 days, which, along with accredited presentence incarceration, amounts to a global sentence of 46 months.

“P. Lauwers J.A.”

“Gary Trotter J.A.”

“David M. Paciocco J.A.”