R. v. Filli, 2015 ONSC 3652
CITATION: R. v. Filli, 2015 ONSC 3652
COURT FILE NO.: CRIMJ(F) 2285/12
DATE: 2015 06 05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KAMAL FILLI
Defendant
S. Montefiore, for the Crown
J. Rabinovitch, for the Defendant
HEARD: June 4-5, 2015
REASONS FOR SENTENCE
WOOLLCOMBE J.
Overview
[1] The accused, Kamal Filli, was arraigned on one count of possession for the purpose of trafficking heroin. He pleaded not guilty. The case proceeded before me as a blended voir dire on the Charter issues. The accused sought to exclude the narcotics under s. 24(2) of the Charter on the basis of violations of ss. 8 and 9 of the Charter.
[2] There was one witness on the voir dire: Constable Damian Savino. Following the voir dire, I released a written Ruling in which I held that there had been no Charter violation and that, had there been, I would have admitted the narcotics under s. 24(2) of the Charter. The Crown called no further evidence. The accused elected to call no evidence.
[3] On the basis of the evidence that I had heard, I concluded that all of the elements of the offence had been proven beyond a reasonable doubt and convicted the accused.
[4] Counsel put before me for consideration on sentence a joint position of four years, less credit for time served. They are agreed that the time from the accused’s arrest on April 9, 2012 until his release on bail on June 18, 2012 ought to be credited on a 1.5:1 basis. This is 71 days which, on a 1.5:1 basis would be 106.5 or 107 days.
[5] Counsel are not agreed with respect to whether the accused should be credited for time spent in custody following his arrest on other charges that are before the court in Toronto. The accused was arrested and charged on April 16, 2014 with possession for the purpose of trafficking charges. He has been in custody on those charges since his arrest (1 year and 51 days or 416 days). He seeks credit for this time on a 1.5:1 basis, which would amount to 624 days. The Crown says that no credit ought to be given for this period of custody.
The Facts
(a) Circumstances of the Offence
[6] I set out the facts in detail in the Charter Ruling and will only summarize them here.
[7] Constable Damian Savino, an experienced Peel Police officer in the Street and Gang Unit of the Peel Police was the only Crown witness. On April 9, 2012, Constable Savino became involved in surveillance of a Honda Civic. He followed the Civic to the parking lot of a McDonald’s Restaurant at King Street and Dufferin in Toronto. He parked his unmarked vehicle in the lot and made a number of observations.
[8] At one point, the passenger in the Civic exited the vehicle and tossed a white object to the ground by the front of the Civic. The passenger re-entered the Civic.
[9] Shortly after, the accused arrived in the parking lot in a Mitsubishi. He exited his vehicle, attended at the Civic, and entered the Civic through the rear passenger door. He was in the Civic for only a few seconds before he exited and walked to the front of the Civic. He picked up the white object that had been tossed down by the passenger of the Civic, looked at it and placed it into his right pocket. He returned to the Mitsubishi.
[10] Both vehicles left. The accused was followed and arrested for possession of a controlled substance. During the ensuing patdown search, the white package fell from the accused’s right inside pant leg to the asphalt.
[11] The officer picked it up and secured it. An examination of the white package revealed that it contained 34.1 g of heroin. It was admitted by the accused that the quantity was for the purpose of trafficking.
(b) Circumstances of the Offender
[12] Counsel have put before me very little information about the accused. He is 40 years old and has the following adult criminal record:
• June 24,1994: Convictions for possession of property obtained by crime and dangerous operation of a motor vehicle for which he received a suspended sentence and 1 year probation;
• June 17, 1999: Conviction for possession of a Schedule I substance for which was fined $300;
• April 21, 2004: Convictions for possession of a Schedule I substance for the purpose of trafficking and fail to comply recognizance for which he received 30 days on each charge, concurrent (in addition to 7 months pre-sentence custody);
• May 5, 2004: Convictions for fail to comply recognizance and impaired driving for which he received a sentence of 45 days concurrent on each charge;
• June 28, 2007: Conviction for possession of a Schedule I substance for which he received a sentence of 3 years with credit for the equivalent of 22 months pre-sentence custody; and
• February 11, 2009: Conviction for possession of a Schedule I substance for the purpose of trafficking for which he received a sentence of 60 days in addition to 168 days of pre-sentence custody.
[13] The accused has, today, provided me with twelve Certificates of Completion for various programs completed while in custody. These include courses in Substance Use, Managing Stress, Changing Habits, Being an Effective Father, Anger Management, Thoughts to Action, Supportive Relationships, Problem Solving, Looking for Work and Maintaining Employment. Each appears to have been a one hour session. He tells me that he wants to change his life and be a father.
Positions of Crown and Defence:
[14] As indicated, the Crown and defence are agreed on a four year sentence, less credit for the time spent in custody on these charges. They disagree about credit for time spent in custody on Toronto narcotics charges.
The Joint Position:
[15] It is trite law that a sentencing judge is not bound to accept a joint submission. It is well-settled, however, that a judge should not reject a joint submission unless it is contrary to the public interest and the sentence would bring the administration of justice into disrepute: R. v. Thompson 2013 ONCA 202 at paras. 14-15; R. v. Cerasuolo, 2001 CanLII 24172 (ON CA), [2001] O.J. No. 359 (C.A.); R. v. Dorsey, 1999 CanLII 3759 (ON CA), [1999] O.J. No. 2957 (C.A.).
[16] I am satisfied that the sentence of four years that has been put before me as a joint position is within the appropriate range and would be fit in the circumstances of the offence and offender. Accordingly, I accept that the joint position of four years, less whatever pre-sentence custody is properly credited to the accused is a fit sentence.
Should the accused be credited for time in custody on the Toronto charges?
[17] As indicated, the real issue is whether the accused ought to receive credit for the period of time that followed his Toronto arrest on April 16, 2014.
[18] Section 719(3) of the Criminal Code states:
In determining the sentence to be imposed on a person convicted on an offence, a court may take into account any time spent in custody by the person as a result of the offence…
[19] The Supreme Court of Canada has commented in R. v. Wust 2000 SCC 18, 2000 SCC18 at para. 3 that this section:
… provides that in determining the sentence to be imposed, the court may take into account any time spent in custody in relation to the offence for which the person has been convicted.
[20] A similar view was expressed by Justice Rosenberg in R. v. Wilson 2008 ONCA 510. In that case, the appellant argued that he was entitled to credit when sentenced for his robbery conviction for time spent in custody serving a sentence for another, unrelated importing offence. In rejecting this notion, Justice Rosenberg was of the view that this would effectively permit an accused to “bank” time spent in custody. While he acknowledged that there are flaws in the justice system he concluded that “when it comes time to sentence an offender the court can only take into account factors that relate to the particular offence under consideration.”
[21] The question becomes whether if an accused is released on bail on one charge and then arrested on another charge, it can be said that time spent in custody following the second charge is custody “as a result” of the first offence such that s. 719(3) applies. The argument made by counsel is that the denial of bail for the second offence is, at least in part, because of the first (outstanding) charges and so when an accused is sentenced on the first offence, he should be credited for the time served on the second charge. The argument seems to be that if bail for the first offence were revoked under s. 524, the accused would be entitled to pre-sentence custody when sentenced on that offence and that it he should be equally entitled if bail for the first offence is not revoked.
[22] There are a number of authorities dealing with this issue. In most of them, when credit is sought for time served in relation to a different, second charge, that charge has been stayed or withdrawn. There is, therefore, a sense in which time served on that stayed or withdrawn charge is unfairly lost if the accused is unable to use it on the charge for which there has been a conviction. I have been provided with no authority in which a court has imposed credit for time served on a second offence when that second offence remains outstanding. In the authorities I do have in which this specific issue was considered, the sentencing judge declined to give the credit sought.
[23] There are two appellate cases in which the Ontario Court of Appeal has credited an accused for time spent serving a sentence on another offence. In the first, R. v. Reid, 2005 CanLII 14964 (ON CA), [2005] OJ No 1790 (C.A.), the Court relied on s. 726.1 of the Criminal Code rather than s.719 and commented at para. 23:
This is an exceptionally unusual case -- the combination of a denial of bail on a second set of charges and refusal to lift bail on the first charge. Given that the second set of charges was withdrawn, it seems to us that the trial judge should have taken this into account as "relevant information" pursuant to s. 726.1, and given appropriate credit to the six months he served pursuant to the second set of charges before they were withdrawn…[emphasis added]
[24] This approach was followed in R. v. Tsai, 2005 CanLII 22191 (ON CA), [2005] O.J. No 2574 (C.A.). The accused was granted bail on initial charges. He was then charged with other matters and faced a reverse onus bail on those because of the outstanding charges. He was denied bail on the second set of charges. The Crown did not move to revoke bail on the first charges. At trial, it was agreed that the time in custody on the second set of charges would not be taken into account. These charges were subsequently withdrawn and on appeal, the appellant sought credit for the time served on the second set of charges. The Court applied Reid and credited the appellant.
[25] It is significant that in both of these cases, the second set of charges had been withdrawn. This is similar to the situation in Wilson where, after the sentencing on the robbery charges, the importing charges were stayed pursuant to s. 11(b) of the Charter. Counsel’s argument in that case was, in fact, premised on the fact that the second set of charges had been stayed and relied on this to seek credit for time served on those offences.
[26] Justice Hill considered a similar situation in R. v. Gobin 2012 ONSC 3523. The accused was released on bail on Peel charges and then was arrested on Newmarket charges. He consented to his detention on the Newmarket charges because it was apparent that he was not going to be released. His Peel bail was never revoked. When sentenced for the Peel charges, he sought credit for the time served on the Newmarket charges. Those charges had been stayed by the Crown at the time of the preliminary inquiry. After reviewing the legal principles, Hill J. credited the accused on a 1:1 basis for the time spent in custody on the Newmarket charges, either on account of s. 719(3) or as a mitigating circumstance.
[27] There seems to me to be a real difference between crediting time served on other charges when those other charges have been withdrawn or stayed, and crediting time served on other charges when those charges are outstanding. Justice Ricchetti dealt with the situation of the second set of charges being outstanding in R. v. Garrick 2012 ONSC 2528. In rejecting the offender’s request for credit on other outstanding charges, Justice Ricchetti held at paras. 66-68:
The charges in Toronto remain outstanding.
This is not a situation as in R. v. Tsai (2005), 2005 CanLII 22191 (ON CA), 199 O.A.C. 244 or R. v. Reid, [2005] O.J. No. 1790, 2005 CanLII 14964 (Ont. C.A.), where the second set of charges had been withdrawn prior to the sentencing on the conviction. No authority has been provided to this court where an accused has been given credit for pre-sentence custody where the second set of charges remain outstanding.
The credit, if any, for this pre-sentence custody in the Toronto charges is best dealt with in the Toronto proceedings where all of the facts and circumstances may be properly considered by the court in determining whether credit should be given for pre-sentence custody and, if so, what amount. Credit for pre-sentence custody is not automatic and is based on a consideration of all of the circumstances. The circumstances of the proceedings in Toronto are not in evidence before me. To deal with that in this sentencing hearing without any evidence on the issues involving those outstanding charges would be mere speculation by this court and not a disciplined basis upon which to consider or grant credit in this sentencing.
See also: R. v. Maqsood, [2010] O.J. 2615 at paras. 68-69
[28] In the case before me, the accused was granted bail in Peel. That bail was never revoked. He was subsequently charged in Toronto. Due to the Peel charges, the Toronto charges were reverse onus. I am told that he never had a bail hearing on the Toronto charges because he did not have appropriate sureties available and so would inevitably have been detained. Those charges are outstanding.
[29] I am not prepared to credit the accused for any time served on the outstanding Toronto charges under s. 719(3). At the time he was charged in Toronto, the accused was on bail on the Peel charges. That bail was never revoked. He never had a bail hearing in Toronto. While I accept that there may well be a connection between the existence of the Peel charges and the fact that the accused remained in custody on the Toronto charges, I am not inclined to conclude in these circumstances that he was in custody “as a result” of the Peel charges. In my view, he was in custody primarily as a result of the Toronto charges.
[30] I am also not prepared to conclude that the custody on the Toronto charges, where those charges are outstanding, is a mitigating circumstance that ought to be considered in this case. Like Ricchetti J., I am of the view that when the circumstances of the Toronto charges are not before me, I should not deal with them. The pre-sentence custody issue in relation to those charges should properly be dealt with when those charges proceed.
[31] Accordingly, there will be no credit for pre-trial custody in relation to time spent in custody following the arrest on the Toronto charges.
Ancillary Orders:
[32] The Crown seeks a DNA order under s. 487.051 of the Code. The defence made no submissions on this issue. I am satisfied that the order should be made.
[33] A firearms prohibition under s. 109 is mandatory in these circumstances and shall be made.
[34] The Crown seeks a forfeiture order of offence related property. The defence acknowledged that this order is appropriate and it shall be made.
Final Decision:
[35] In conclusion, the following sentence is imposed:
a) Four years custody less credit of 107 days for pre-sentence custody;
b) A DNA Order under s. 487.051 of the Criminal Code;
c) A lifetime weapons Order under s. 109 of the Criminal Code.
d) A forfeiture Order under ss. 2 and 16 of the Controlled Drug and Substances Act.
Woollcombe J.
Released: June 5, 2015
CITATION: R. v. Filli, 2015 ONSC 3652
COURT FILE NO.: CRIMJ(F) 2285/12
DATE: 2015 06 05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KAMAL FILLI
Defendant
REASONS FOR SENTENCING
WOOLLCOMBE J.
Released: June 5, 2015