Ostap Melnik

The appellant appealed a twenty-month custodial sentence for possession of heroin for the purpose of trafficking, arguing that the sentencing judge should have imposed a conditional sentence.

The Court of Appeal held that although a conditional sentence may be available in unusual opioid-trafficking cases, denunciation and general deterrence will typically require incarceration.

The sentencing judge conducted a case-specific analysis, and the applicable deferential sentence-appeal standard disclosed no basis for appellate intervention.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant appealed his two-year sentence for possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

He introduced fresh evidence detailing exceptionally harsh custodial conditions, including prolonged triple-bunking and extended lockdowns, which exacerbated his mental health vulnerabilities.

The Court of Appeal found the original sentence fit but admitted the fresh evidence, concluding that the cumulative impact of the custodial conditions materially increased the punitive effect of the sentence.

The appeal was allowed in part, and the sentence was varied to time served followed by a conditional sentence.

Dwight Banton pleaded guilty to possession of a handgun with readily accessible ammunition, breach of a firearms prohibition order, and possession of MDMA for the purpose of trafficking.

The Crown and defence proposed a joint submission for a global sentence of three years imprisonment, less pre-trial custody credit (PTCC).

The court reluctantly accepted the enhanced PTCC calculation of 23 months, leading to a remaining sentence of 13 months imprisonment.

Ancillary orders for a lifetime firearms prohibition and DNA sample were also granted.

The accused was charged with importing cocaine after arriving at Pearson Airport from Colombia with two rum bottles in his luggage.

One bottle was confirmed to contain over 1 kilogram of liquid cocaine.

The Crown failed to prove the contents of the second bottle due to continuity issues with the police exhibits.

On the issue of knowledge, the court found that the circumstantial evidence, including the accused's candid customs declaration and the lack of inculpatory evidence, did not exclude the reasonable inference that he was a blind courier unaware of the drugs.

The accused was acquitted.

The accused was charged with importing cocaine after arriving at Pearson Airport from Colombia.

He was referred to secondary inspection as a contraband target.

A border services officer searched his luggage and found cocaine in a rum bottle.

The accused brought a pre-trial motion to exclude his statements and the cocaine, alleging breaches of his Charter rights under ss. 7, 8, 10(a), and 10(b).

The court found that the accused was detained when the officer formed a strong and particularized suspicion, and that his s. 10 rights were breached by a subsequent question.

The court also found that the RCMP breached his s. 10(b) rights by failing to facilitate contact with a lawyer of his choosing.

Statements made after the breaches were excluded under s. 24(2), but the cocaine and earlier statements were admitted.

The applicant sought a review of a detention order under s. 520(1) of the Criminal Code.

He was charged with possessing crack cocaine for the purpose of trafficking and a loaded restricted firearm.

The court found a material change in circumstances because disclosure revealed the Crown's case was significantly weaker than presented in the initial police synopsis, and the applicant proposed a more stringent release plan including GPS monitoring.

The court concluded that detention was not justified on either the secondary or tertiary grounds and ordered the applicant's release on strict conditions with three sureties.

The three accused faced various charges relating to the importation of 29 kilograms of heroin and 600 grams of opium concealed in a shipping container of marble stone.

At the close of the Crown's case, all three accused brought motions for directed verdicts.

The court dismissed the motions brought by two of the accused, finding sufficient circumstantial evidence from which a jury could reasonably infer their knowledge and participation in the drug importation and trafficking scheme.

However, the court granted the motion for the third accused, the consignee of the shipment, finding no evidence reasonably capable of supporting an inference that he knew about the drugs, and entered not guilty verdicts on his charges.

The three accused were charged with importing cocaine after returning from a vacation in Jamaica.

Border Services Officers found approximately half a kilo of cocaine hidden inside cocoa powder cans in each of their checked suitcases.

The accused immediately disavowed knowledge of the drugs, claiming they were planted by unknown persons.

The court rejected the Crown's argument that 'Occam's Razor' proved guilt and found that the accused's immediate disavowals and testimony raised a reasonable doubt regarding their knowledge of the drugs.

All three accused were found not guilty.

Osita Nweke was convicted by a jury of possession of heroin for the purpose of trafficking and importation of heroin.

He absconded prior to sentencing and was sentenced in absentia under s. 475(1)(b)(i) of the Criminal Code.

The court considered the serious nature of heroin offences, the large quantities involved (97g imported, 684.8g possessed for trafficking), the commercial enterprise, and the motive for profit as aggravating factors.

The absence of a prior criminal record was a mitigating factor.

Applying the totality principle, the court imposed a total sentence of 12 years imprisonment (5 years for importation and 7 years for possession for trafficking, to be served consecutively).

Additionally, a $20,000 fine in lieu of forfeiture was ordered for proceeds of crime, and a 10-year weapons prohibition was imposed.

The accused sought to exclude evidence seized during a search of their cannabis dispensary, Pharma-Cann, arguing the search warrant was invalid due to an inadequate description of the premises and violated their s. 8 Charter rights.

The court found the warrant adequately described the premises as Suite 117, despite it being subdivided into 117A and 117B, because police relied on public information and undercover observations that did not reveal the subdivision.

No s. 8 Charter breach was found.

Alternatively, if a breach occurred, the evidence would not be excluded under s. 24(2) as the police conduct was not serious, deliberate, or in bad faith, and society's interest in adjudication on the merits outweighed the impact on Charter rights.

The applicant sought a stay of proceedings due to unreasonable delay under s. 11(b) of the Charter.

The total delay from charge to anticipated trial completion was 93.5 months (2,843 days).

After deducting defence-attributable delay and exceptional circumstances, the net delay was 35.76 months, exceeding the 30-month presumptive ceiling for Superior Court cases established in R. v. Jordan.

The court found that the Crown failed to rebut the presumption of unreasonableness by demonstrating transitional exceptional circumstances, noting the case's lack of complexity, significant institutional delay under Morin principles, and the applicant's substantial prejudice.

The application was allowed, and the charges were stayed.

Charita Johnson was charged with importing cocaine into Canada after nearly three kilograms were found in her checked luggage upon returning from Jamaica.

A similar amount was found in her aunt Natalia Smith's luggage.

Johnson claimed she had no knowledge of the cocaine and was used as a drug mule by her aunt.

The court found Johnson's testimony not credible due to numerous inconsistencies and an "unbelievable story" regarding the trip arrangements, luggage contents, and the high value of the drugs without an exit plan.

The court concluded that Johnson had knowledge of the cocaine and found her guilty of importing cocaine.

The defendant, David D’Souza, was sentenced after being convicted of possession of heroin and possession of heroin for the purpose of trafficking.

Police surveillance led to a search of his auto body shop, where 34.2 grams of heroin, dime baggies, a debt book, and cash were found.

The jury acquitted him of trafficking but convicted him of the possession charges.

The Crown sought a five-year penitentiary sentence, while the defence proposed two years less two days.

The court emphasized denunciation and deterrence, noting the pernicious nature of heroin and the defendant's commercial motive.

Considering aggravating factors (commercial profit, mature age, not an addict) and mitigating factors (no prior criminal record, loving family, community involvement), the court imposed a four-year custodial sentence concurrently for both counts, along with a DNA order and a ten-year weapons prohibition.

The applicant, charged with importing cocaine after a secondary inspection at the airport, brought an application for third party records seeking CBSA training materials on racial profiling.

She alleged that her referral to secondary inspection was based on racial profiling because she is Black and was travelling from Jamaica.

The court applied the O'Connor test and found that the applicant failed to establish that the requested records were likely to be relevant.

The court held that there was no direct or circumstantial evidence of racial profiling, as travelling from a drug source country was only one of several objective indicators used by the CBSA officer.

The application was dismissed.

The accused, Dexter Peters, was convicted by a jury of importing 2.827 kilograms of cocaine.

Defence counsel argued for a sentence reduction of 5-11 months, citing the Abolition of Early Parole Act (AEPA) and its elimination of accelerated parole review (APR), to ensure parity with individuals sentenced before the AEPA came into force.

The court rejected this submission, distinguishing Canada (A.G.) v. Whaling on the basis of retrospectivity and affirming that parole eligibility is generally not a factor for sentencing judges.

The court also held that the parity principle does not apply across different legislative regimes and that courts should not impose artificial sentences to circumvent Parliament's legislative intent.

Considering the gravity of the offence, the quantity of drugs, the accused's lack of criminal record, family support, and rehabilitation prospects, the court imposed a sentence of six and a half years.

After accounting for 239 days of pre-trial custody at a 1.5:1 ratio (359 days credit), the net sentence was five years, six months, and six days.

A 10-year weapons prohibition order and a DNA order were also issued, and seized drugs and property were forfeited to the Crown.

The accused was charged with importing cocaine after a secondary customs inspection at the airport revealed cocaine hidden in bags of dried soy product.

The accused brought a pre-trial application to exclude statements made to border officers, arguing he was detained prior to his arrest without being advised of his right to counsel, violating ss. 7, 10(a), and 10(b) of the Charter.

The court found that the accused was not detained until the officer discovered the contraband, at which point he was arrested and given his rights.

The court also found the statements were voluntary.

The application was dismissed and the evidence was ruled admissible.

The accused brought an application under s. 24(1) of the Charter seeking a stay of proceedings for breach of the right to be tried within a reasonable time under s. 11(b).

The charges involved four counts of trafficking in cocaine.

The total delay from charge to trial was approximately three years and four months, including about fourteen months of institutional delay in the Superior Court.

The court found that a nine‑month delay after an adjourned trial date resulted from systemic scheduling failures despite a judicial direction that the trial be set within three months.

The accused established significant prejudice arising from restrictive bail conditions requiring separation from his family and the inability to pursue employment or education opportunities.

Balancing the relevant Morin factors, the court concluded that the delay was unreasonable and granted a stay of proceedings.

The accused pleaded guilty during a jury trial to careless use of a firearm, being an occupant of a motor vehicle knowing a firearm was present, and carrying a concealed weapon.

The court considered whether the firearm was loaded and found the Crown had not proven beyond a reasonable doubt that the rounds in the magazine were live ammunition.

The offender was a licensed gun owner with no criminal record who carried the handgun for protection while purchasing marijuana and transported it contrary to legal requirements.

Applying the principles in ss. 718–718.2 and considering conditional sentencing jurisprudence, including R. v. Proulx, the court concluded the risk of re‑offending was very low and that a conditional sentence would satisfy denunciation, deterrence, and rehabilitation.

The accused received an 18‑month conditional sentence with strict house arrest conditions, community service, and a 10‑year discretionary weapons prohibition.

The Crown brought an application to admit videotaped statements made by two defendants following their arrest for firearms offences.

The defendants argued the statements were involuntary because the interviewing officer failed to inform them they would also be charged with being occupants of a motor vehicle knowing there was a firearm.

One defendant also alleged he was assaulted by an officer and that the interviewing officer used inducements and trickery.

The court found that the defendants generally understood the serious jeopardy they faced regarding the firearms investigation, and that the failure to specify the occupant charge did not invalidate their waiver of rights.

The court also rejected the allegations of inducements, oppressive trickery, and the impact of the alleged assault, ruling the statements voluntary and admissible.