Court File and Parties

Court of Appeal for Ontario Date: 20241028 Docket: COA-24-CR-0204

Before: Roberts, Copeland and Dawe JJ.A.

Between: His Majesty the King Respondent

And: Muhammad Hassan Appellant

Counsel: Mark Halfyard, for the appellant Nicholas Cooper, for the respondent

Heard: October 21, 2024

On appeal from the sentence imposed on October 6, 2023 by Justice Marquis S. V. Felix of the Ontario Court of Justice.

Reasons for Decision

[1] On April 12, 2023, the appellant was convicted of possession for the purpose of trafficking of three kilograms of cocaine. The appellant was alone in his residence and was found within three or four feet of where the bag with the cocaine was discovered. The Crown sought a sentence of six years less credit for pre-sentence custody and the defence sought a sentence of time-served, equivalent to a three to three-and-a-half-year custodial sentence. With notice to and submissions from the parties about exceeding the Crown’s position, on October 6, 2023, the trial judge imposed just under a seven-year custodial sentence of 2,525 days, less credit for pre-sentence custody of 690 days at 1.5 to one totalling 1,035 days, leaving 1490 days to be served. At the time of sentencing, the appellant was a 25-year-old, first time offender.

[2] The appellant seeks leave to appeal his sentence. He submits that the trial judge made several reversible errors that rendered the sentence imposed demonstrably unfit. He asks that this court set aside the sentence imposed by the trial judge and replace it with the trial Crown’s proposed six-year custodial sentence, less pre-sentence custody.

[3] The appellant raises several issues. In our view, the appeal can be disposed of on two bases: first, the trial judge erred by finding as an aggravating factor that the appellant was a high-level trafficker; second, the trial judge appears to have erroneously rejected as mitigating the unchallenged evidence of the appellant’s life circumstances and concluded that such factors did not affect his moral blameworthiness. These errors led the trial judge to impose a higher sentence that was demonstrably unfit in the circumstances of this case.

[4] With respect to the first issue, it is well-established that the Crown bears the burden of proving an aggravating factor on sentence beyond a reasonable doubt: s. 724(3)(e) of the Criminal Code, R.S.C. 1985, c. C-46; R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368, at p. 415. The role that an accused plays in a drug trafficking operation is a significant factor on sentencing: the higher the role in the hierarchy of the operation, the more aggravating this factor becomes on sentencing: R. v. McGean, 2019 ONCA 604, at para. 33; R. v. Majnoon, 2009 ONCA 876, at paras. 8-9, leave to appeal refused, [2010] S.C.C.A. No. 288. As the Crown sought to rely on the appellant’s role in the drug trafficking hierarchy as an aggravating factor on sentencing, it had to prove the appellant’s role beyond a reasonable doubt.

[5] The trial judge determined that the governing principles in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, played no role in the sentencing process. Specifically, he found that he was not required to consider other circumstantial inferences arising from the evidence or lack of evidence in his determination of whether the Crown had met its burden. He found that the appellant had failed to show what role he played in the organization. The trial judge determined that there was no evidence of the appellant’s supposed role in any alleged organized criminal network or about its composition and parameters, nor any surveillance or wiretap evidence involving the appellant. He appears to have based his determination that the appellant was a high-level trafficker solely on the basis of his finding at trial that the appellant was engaged in high-level trafficking because of his proximity to a large amount of cocaine.

[6] The governing principles set out in Villaroman are relevant in the sentencing process: see, for example, McGean, at paras. 27-29. Further and relatedly, the trial judge reversed the burden borne by the Crown by requiring the appellant to prove his role in the operation. Finally, the trial judge erred by not giving effect to his finding that there was no evidence to prove the appellant’s role and by failing to find that the Crown did not discharge its burden. The presence of the appellant near the cocaine found in his residence demonstrated that the appellant was involved in high-level drug trafficking; however, it did not show what role he played, let alone establish that the appellant was personally a high-level trafficker: R. v. Ceballos, 2015 ONSC 720, at para. 19; R. v. Ramos, 2007 MBCA 87, at para. 13. Here, there was simply no evidence to demonstrate the appellant’s involvement one way or the other. As a result, the trial judge’s characterization of the appellant as a high-level trafficker was speculative: R. v. Shahnawaz, 51 O.R. (3d) 29 (C.A.), at para. 17. His role should not have been treated as an aggravating factor on sentencing.

[7] The trial judge treated his characterization of the appellant as a high-level trafficker as an aggravating factor that played a significant role in his decision to impose a higher sentence. As he indicated in his reasons on sentence, the trial judge determined that “sentences for large volume commercial traffickers moving significant weight should range higher.” As the Supreme Court instructed in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 43-44, appellate intervention in a sentence imposed at trial is justified where the sentencing judge erroneously considered an aggravating factor, and that error had an impact on the sentence actually imposed. That is the case here.

[8] The trial judge’s second error in principle concerns his treatment of the appellant’s unchallenged evidence, as corroborated by collateral sources, about his difficult upbringing. Both the Crown and defence submitted that this evidence should be considered as a mitigating factor because it reduced the appellant’s moral blameworthiness. The trial judge appears to have rejected the appellant’s evidence by taking judicial notice of the circumstances of the appellant’s neighbourhood based on his experience as a trial judge and on his personal experience of “the circumstances of [his own] upbringing and residence in the same city.” Specifically, he determined that the appellant’s neighbourhood contains “excellent schools” and “hardworking persons supporting intergenerational families.” He found that the appellant “chose to pollute his neighbourhood” by becoming involved in “a large scale drug trafficking enterprise.” He concluded that neither the appellant’s surroundings nor his exposure to violence, gangs or poverty “diminished his criminal moral blameworthiness”, largely because of his view that the “vast majority of persons” in the appellant’s neighbourhood “do not resort to drug trafficking whatever their economic circumstances.” As a result, he concluded that the governing principles in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, “are of little import in this sentencing”.

[9] Despite acknowledging that “the background features of the accused are always relevant to sentencing”, the trial judge’s reasons do not reveal what mitigating effect, if any, the appellant’s background had on the sentence imposed. The mitigating factors explicitly listed by the trial judge only included credit for harsh custodial conditions and the fact that the appellant was a youthful first offender. The trial judge’s judicial notice and personal view of the appellant’s neighbourhood appear to have led him to impose a harsher sentence because this neighbourhood was “as deserving of protection as any other community in Toronto. The community deserves to be protected from predatory commercial drug traffickers interested in profiting from the terrible impact produced by drug trafficking and drug addiction.”

[10] We agree that the trial judge’s judicial notice of the appellant’s neighbourhood and his personal experience distorted his analysis. While it was open to the trial judge to reject the appellant’s evidence, he appeared to do so on the basis that the appellant’s neighbourhood has many hardworking and law-abiding individuals. The experience of others in the neighbourhood does not detract from the appellant’s own experience. Otherwise, the governing principles of Morris and other cases that require an assessment of the effect of an individual accused’s background and life experiences on his or her moral blameworthiness would be rendered meaningless.

[11] This court’s decision in Morris recognizes that disadvantaged circumstances can mitigate, to some degree, the moral blameworthiness of the offender: at paras. 94, 99. A person with a disadvantaged background may receive a lower sentence than someone from a stable background where the offence is linked in some way to the background or systemic factors: at para. 94. In this case, the appellant led unchallenged evidence of his difficult personal experiences and upbringing which, in our view, mitigate his moral blameworthiness with respect to the offence of which he was convicted.

[12] As a result of the trial judge’s errors, we must consider afresh the appellant’s sentence. In the particular circumstances of this case, we agree that the appropriate sentence would be that proposed by the Crown and submitted on appeal by the appellant: six years less 1035 days of pre-sentence custody.

Disposition

[13] The sentence appeal is allowed, and the trial judge’s sentence order is set aside. In its place, we impose a sentence of six years less pre-sentence custody of 1035 days.

[14] The appellant has been serving his sentence since it was imposed over a year ago on October 6, 2023. In light of the reduction of the sentence that we have imposed, we note for the benefit of the Parole Board that the appellant must now be at or very close to his parole eligibility date.

“L.B. Roberts J.A.”

“J. Copeland J.A.”

“J. Dawe J.A.”