R. v. Mohamed, 2020 ONCA 163

SENTENCING RANGES - DEMONSTRABLY UNFIT - APPELLATE INTERVENTION

The respondent pleaded guilty to ten weapon and drug trafficking offences. The Crown sought a global penitentiary sentence of four years’ less 437 days of pre-sentence custody. The respondent asked for a global sentence two years less a day, less 437 PSC to be served under a conditional sentence order. The SJ adopted the defence’s proposed sentence. The Crown appeals the imposed sentence.

The SJ erred in law by imposing a conditional sentence for the offence of possessing cocaine for the purpose of trafficking. Possession of cocaine for the purpose of trafficking is a straight indictable offence punishable by up to life imprisonment. As a result, a conditional sentence is not legally available for this offence under s. 742.1(c) of the Criminal Code.

R v Lacasse, 2015 SCC 64, makes it clear that unless the SJ makes “an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.”

While the SJ in this case made an error of law by imposing a CSO in relation to the cocaine count, this error did not impact the sentence.

At the sentencing hearing, all parties agreed that a 6-month sentence would appropriately capture the drug offences (including the cocaine trafficking count). The respondent had already served the equivalent of 437 days which significantly outstrips the 6-months necessary for the cocaine count.

The ONCA concludes that the aggravating factors in this case (combination of drugs and guns, presence of multiple drugs, victim impact, etc.) generally favour a higher sentence than the one imposed. Nonetheless, the ONCA does not interfere with the sentence. 

The ONCA reminds us that sentence ranges are merely guidelines, there will almost always be situations that call for a sentence outside a particular range given the uniqueness of the circumstances of the case or the uniqueness of the particular offender. The SJ in this case appropriately identified the range for these offences as 3- to 5-years and carefully explained why she departed from the range in this case. These reasons include the age of the offender, his demonstrated desire to rehabilitate himself and the total absence of disciplinary problems while in custody. Given all of these circumstances, the imposed sentence was not demonstrably unfit and therefore, did not warrant appellate intervention.