COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D'Gama, 2020 ONCA 703

DATE: 20201106

DOCKET: C64629 and C64328

Doherty, Hourigan and Pardu
    JJ.A.

BETWEEN

C64629

Her Majesty the Queen

Respondent

and

Peter DGama

Appellant

AND BETWEEN

C64328

Her Majesty
    the Queen

Respondent

and

John
    DSouza

Appellant

Peter DGama, as self-represented

Richard Litkowski, for the appellant
    DSouza

Kevin Rawluk, for the respondent

Heard: October 28 by video conference

On appeal from the convictions entered
    on April 28, 2017 and the sentence imposed on the appellant, DSouza, on
    September 18, 2017, by Justice A.J. OMarra of the Superior Court of Justice,
    sitting with a jury.

REASONS FOR DECISION

[1]

The appellants were convicted by a jury of two
    counts of using a forged document, two counts of attempted fraud, and one count
    of attempting to obstruct justice. The appellant, DSouza, received a sentence
    of three years. The appellant, DGama, received a conditional sentence of two
    years, less a day. DSouza appealed conviction and sentence. DGama appealed
    conviction only. At the end of oral argument, the court dismissed the appeals
    with reasons to follow. These are those reasons.

[2]

In about 2010, the appellants sued a number of
    defendants over a failed real estate transaction. They represented themselves.
    In July 2012, the lawyer for some of the defendants received from the
    appellants what appeared to be a copy of an
ex parte
judgment, dated
    June 19, 2012 and signed by the Honourable Justice Penny of the Ontario Superior
    Court of Justice. The judgment purported to allow the appellants to proceed
    against certain bankrupt defendants, awarded the appellants damages, including
    punitive damages, and issued an injunction prohibiting the encumbrancing of certain
    property. The judgment also granted declaratory relief against various
    defendants, declaring those defendants had conspired to defraud the appellants.
    The judgment set out several specific findings of fraud made against various
    entities, including non-defendants.

[3]

The defendants lawyer suspected the bona fides
    of the judgment for many reasons. He requested a hearing before Justice Penny.
    That hearing took place in late July. With the consent of the appellants, Penny
    J. set aside the alleged judgment and ordered a further hearing. In December,
    Penny J. held the further hearing and subsequently released a costs endorsement
    [the endorsement]. The endorsement included the following:

[18] On June 19, 2012, there is an entry in
    the case history that a motion for judgment was on the list before Master
    Glustein. There is no record of the disposition of that attendance, I advised
    the parties that:

1. I was sitting in Family Law Motions on
    June 19, 2012 and this matter did not appear on my door sheet;

2. I have no recollection of seeing any
    record or material from this case, nor do I have any recollection of seeing the
    plaintiffs or have signing this order [judgment].

3. There is no record in the court system
    of this matter ever having been before me.

[23] This matter was never before me, in
    person or in writing.

[24] I had never seen the plaintiffs motion
    record of June 18, 2012 before it was delivered to my attention in November
    2012.

[25] Prior to July 31, 2012, I have never seen
    the plaintiffs before.

[27] Although the signature on the photocopy
    of the June 19, 2012 judgment appears to be my signature, I did not sign the
    June 19, 2012 judgment.

[4]

The Crown alleged the appellants, acting
    jointly, forged the judgment of Penny J. and then sent a copy of the forged
    judgment to counsel for some of the defendants threatening criminal charges.
    The appellants also sent a copy of the judgment to the Real Estate Council of
    Ontario. At least one of the defendants was subject to regulation by the Council.

[5]

The Crown contended the appellants conduct
    constituted using a forged document (two counts), an attempt to defraud two of
    the defendants for whom the lawyer who received a copy of the judgment acted
    (two counts), and an attempt to obstruct justice.

[6]

At a pretrial hearing, counsel for Justice Penny
    submitted Justice Penny could not be compelled to testify as the matters related
    to the exercise of his judicial function. The motion judge accepted this
    submission. He further held a redacted version of the endorsement provided by Justice
    Penny would be admissible for the truth of its contents under the principled
    exception to the hearsay rule:
R. v. DSouza
, 2017 ONSC 2231. The
    redacted endorsement was ultimately admitted at trial and became the
    centrepiece of the Crowns case.

[7]

Neither appellant testified. The defence led
    evidence from one witness, Albert Macedo. He claimed he had been contacted by
    the appellant, DSouza, who asked him to meet the appellant, DGama, at the
    courthouse and provide DGama with the funds necessary to file certain
    documents. According to Macedo, he had not spoken with DSouza for three or
    four years before he received this call.

[8]

Mr. Macedo went to the courthouse and met Mr. DGama.
    He did not examine the documents, but paid for the filing. He accompanied Mr.
    DGama to the Masters Office with the documents. Mr. Macedo left his phone
    number with the person in the Masters Office. A few days later, Mr. Macedo
    received a message indicating the the order is in. He called the appellant,
    DSouza, and told him he could pick up the order. Mr. Macedo did not know the
    name of the file, or anything about any of the material in the file. Nor did he
    ever see an order.

[9]

At trial, the defence argued the judgment was
    not a forgery, but either must have been signed in error by Justice Penny, or he
    had signed the judgment and forgotten about it. The defence pointed to evidence
    court documents could be misfiled in the course of making their way through the
    civil justice process. There was also evidence the civil courts in Toronto were
    very busy and generated a continuous and heavy paper flow.

[10]

The trial was brief and the evidence
    straightforward. By the end of the trial, there was one central issue  was the
    judgment forged? If the Crown proved beyond a reasonable doubt the judgment was
    forged, there was no realistic possibility anyone other than the appellants had
    forged the document. If the jury was satisfied the appellants forged the document,
    it was virtually inevitable the jury would convict on all counts. Equally, if
    the jury had a doubt as to whether the document was forged, it was inevitable
    the jury would acquit on all counts.

[11]

Counsel for Mr. DSouza made three arguments:

·

the trial judge failed to adequately identify
    for the jury the factors to take into account when assessing the reliability of
    the hearsay statements contained in the endorsement;

·

the trial judge erred in leaving s. 21(2) of the
Criminal Code
with the jury as a potential basis for liability, and
    erred in his instructions on the operation of s. 21(2); and

·

the trial judge erred in failing to give a
W.D.

    instruction as it applied to the evidence of the defence witness, Macedo.

The Hearsay Instruction

[12]

The trial judge did not give a separate
    instruction cataloguing the specific concerns associated with the assessment of
    hearsay evidence, and in particular the assessment of the hearsay contained in
    the endorsement. The trial judge had canvassed with counsel his instructions
    relating to the endorsement. Counsel were content with the proposed
    instruction. The trial judge did tell the jury to consider the contents of the
    endorsement in the context of all of the other evidence. He also cautioned the
    jury against giving the evidence of the contents of the endorsement added
    weight, simply because its author was a sitting judge.

[13]

The appellants would not have benefitted from a
    more detailed hearsay instruction. This perhaps explains why counsel were
    content with the relatively bare bones instruction suggested by the trial
    judge. A detailed instruction could have referred to factors tending to
    undermine the reliability of the statements contained in the endorsement. However,
    the same instruction would have highlighted the circumstantial guarantees of
    trustworthiness surrounding the document. For example, if the trial judge had
    decided to explain to the jury the reliability of the endorsement could suffer
    because Justice Penny was not under oath when he made it, and not available for
    cross-examination, the trial judge would have also been required to explain to
    the jury Justice Penny was acting pursuant to his judicial oath of office when
    he authored the endorsement, and the endorsement was the product of an
    adversarial process in which the contesting parties had a full opportunity to lead
    all relevant evidence and make detailed submissions concerning the authenticity
    of the judgment.

[14]

The trial judge obviously did not say everything
    he could have said about the factors relevant to the reliability of the
    endorsement. That does not, however, constitute reversible error. Counsel were
    content with the instruction. The approach taken by the trial judge was far
    less harmful to the appellants case than a detailed review of the evidence relevant
    to the reliability of the endorsement would have been.

The Instruction on Section 21(2)

[15]

Section 21(2) is engaged if two or more persons
    agree to act together to commit a crime and one or more of them commits a
    different crime in the course of carrying out the common design. In this case,
    the Crown alleged the appellants acted together, formed a plan to forge the
    judgment and use that forgery for their purposes. The Crown claimed the
    appellants proceeded to do exactly that. This theory does not engage s. 21(2)
    and the section should not have been left with the jury. Unfortunately, the
    Crown requested an instruction on s. 21(2) and the trial judge provided one.

[16]

The s. 21(2) instructions were very brief. They
    were also inaccurate. The impact of the improper instruction on s. 21(2) is
    considered below when addressing the
curative proviso
.

The Failure to give a
W.D.

    Instruction as it Relates to the Evidence of the Defence Witness, Macedo

[17]

Macedos evidence was incredible for many
    reasons. Furthermore, it is difficult to say his evidence, even if not
    rejected, could, on its own, leave the jury with a reasonable doubt on any of
    the charges. Assuming it could, however, the trial judge repeatedly tied
    Macedos evidence to the Crowns obligation to prove the charges beyond a
    reasonable doubt. For example, after summarizing Macedos evidence and the
    defence position reasonable inferences inconsistent with guilt could be drawn
    from his evidence, the trial judge instructed the jury:

If there are other reasonable inferences that
    can be drawn from the evidence, you would have to have a reasonable doubt and
    find the accuseds not guilty.

[18]

The trial judge used similar language in
    describing the Crowns position to the effect Macedos evidence was incapable
    of leaving the jury with a reasonable doubt about the appellants guilt.

[19]

The instructions adequately connected the
    Crowns burden of proof to the jurys assessment of the evidence of Macedo.

Curative Proviso

[20]

Crown counsel, in his submissions, correctly
    described the Crowns case as a powerful one. As noted above, if the jury was
    satisfied beyond a reasonable doubt the judgment was forged, it would
    inevitably have concluded the appellants created the forged document. There was
    quite simply nothing in the evidence pointing to any other possible author of the
    forgery. Not even the defence suggested someone else may have forged the
    document. The defence argued Penny J. had signed the judgment by mistake, or had
    signed it and had forgotten about it.

[21]

The evidence the judgment was forged was also overwhelming.
    That evidence included the content of the judgment itself. It is difficult to
    imagine any judge signing a judgment purporting to grant declaratory relief in
    the terms contained in this document. The observations of Penny J., reflected
    in his endorsement, the absence of any evidence lending an air of reality to
    the defence argument the document may have been signed in error, and the
    context of the litigation itself, also points strongly to the fraudulent nature
    of the document. This supposed
ex parte
judgment in favour of the
    appellants was issued only a few days after a motion for summary judgment by
    the defendants had been set down for argument several months down the road.

[22]

Not only is the evidence the appellants, acting
    together, forged the judgment and used it for their purposes overwhelming, any adverse
    effect from the s. 21(2) instruction was neutralized by the trial judges
    repeated and clear instructions that the outcome of all counts depended on
    whether the Crown had proved both appellants knowingly uttered a forged
    document. The trial judge repeatedly and forcefully tied the jurys verdict to a
    finding the appellants had jointly participated in a common design to knowingly
    forge and use the document. Given those instructions, there is no risk the
    erroneous instructions on s. 21(2) misled the jury or affected their
    deliberations. The
curative proviso
is safely applied.

DSouzas Sentence Appeal

[23]

The three-year sentence was appropriate. DSouza
    has a significant criminal record, including convictions, albeit dated, for
    closely related offences. He received two years in respect of those earlier offences.
    There is no reason to interfere with the sentence imposed.

DGamas Appeal

[24]

The appellant, DGama, adopted the submissions
    made by counsel for DSouza. He advanced several other grounds of appeal in his
    factum and addressed some of those arguments in oral submissions. The court did
    not call on the Crown to respond to any of the submissions made by DGama.

[25]

There is no merit to the grounds advanced by Mr.
    DGama. Two merit brief reference. Mr. DGama submits the motion judge wrongly
    held Justice Penny was not a compellable witness. We disagree. At para. 19, the
    motion judge said:

The central issue for determination is whether
    Justice Penny, were he to testify, would be compelled to speak about either the
    exercise of his judicial function, or about matters inextricably intertwined
    with the exercise of his judicial function.

[26]

The motion judge properly identified the
    operative principle. Any testimony from Justice Penny would have engaged either
    or both aspects of that principle:
R. v. DSouza
, 2017 ONSC 2231, at
    paras. 19-21.

[27]

DGama also argued a judge, other than a judge
    from the same judicial Region as Justice Penny, should have presided over the
    trial. He contended the failure to bring in an out-of-town judge created a
    reasonable apprehension of bias.

[28]

A judge from a different Region heard the
    pretrial motion relating to the compellability of Justice Penny and the
    admissibility of his endorsement under the hearsay rules. Bearing in mind the
    very strong presumption in favour of judicial impartiality, there is no reason
    to conclude the failure to bring in a judge from another region created a
    reasonable apprehension of bias. This is particularly so, given the charges
    were tried by a jury.

[29]

The appeals are dismissed.

DSouzas Failure to Surrender into Custody

[30]

At the outset of the appeal, counsel for DSouza
    advised his client had not surrendered into custody, as required by his bail
    order. DSouza claimed to be ill, although he had provided nothing to his
    counsel or to the court to support that claim.

[31]

DSouzas bail order, like all bail orders
    issued by this court, made it clear that the court could dismiss the appeal as
    abandoned if DSouza did not surrender, as required. After hearing submissions,
    the court decided to hear the merits of the appeal and reserve on whether it
    should dismiss the appeal as abandoned. After oral argument, the court decided
    it would decide DSouzas appeal on its merits.

[32]

All appeals are dismissed. A warrant should
    issue for the arrest of DSouza, if required.

Doherty J.A.

C.W. Hourigan J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. DeMarco, 2020 ONCA 718

DATE: 20201112

DOCKET: C67607

Gillese, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cynthia Denise DeMarco

Appellant

Cynthia Denise DeMarco, acting
    in person

Joe Wilkinson, appearing as
    duty counsel

Anna Martin, for the
    respondent

Heard: November 3,
    2020 by video conference

On appeal from the conviction entered on May 10, 2019 and
    the sentence imposed on September 30, 2019 by Justice G. Mark Hornblower of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of possession for the purposes of
    trafficking in heroin and in fentanyl pursuant to the
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19, s. 5(2). She was also convicted of
    possession of
methamphetamine
contrary to s. 4(1) of
    the Act. She was sentenced to two years imprisonment, concurrently, for each
    of the trafficking charges and 30 days imprisonment, concurrently, for the
    possession charge.

[2]

On the conviction appeal, the appellant asserts that she did not have
    knowledge or control of the drugs and drug paraphernalia seized from her
    apartment, making her conviction wrongful.

[3]

The trial judges reasons are short but complete. The police were investigating
    the appellants boyfriend, Jonathan Hughes, for drug trafficking. She lived
    with him in an apartment that she rented. The police obtained a search warrant
    for the apartment and executed it on January 9, 2018. They found sufficient quantities
    of heroin and
fentanyl
in Mr. Hughes possession to
    evidence a trafficking operation. They also seized the cellphones of Mr. Hughes
    and the appellant. The amount of
methamphetamine
found in the apartment did not substantiate trafficking but only possession. The
    appellant was present at the time of the execution of the search warrant.
    Various items of drug
paraphernalia
and
    methamphetamine were found in her room, and she was charged along with Mr. Hughes.

[4]

Based on expert opinion evidence, the trial judge found overwhelming
    evidence that fentanyl and heroine were being trafficked from that residence
    and that the amount of drugs found therein were for the purpose of trafficking.
    He also relied on the combined effect of the surveillance carried out by police
    in the days before the execution of the search warrant and the drugs and drug paraphernalia
    they found upon entry, including evidence that two monitors in the apartment
    were connected to a private surveillance system installed on the exterior walls
    of the building.

[5]

The trial judge considered whether there was any evidence that the
    appellant was personally in possession of those substances for the purpose of
    trafficking. He noted:

The fact that Hughes is involved does not necessarily implicate
    Ms. DeMarco. No drugs were found on Ms. DeMarco. Syringes with
    methamphetamine, a scale, a rubber band and alcohol wipes were all found on her
    bed; a night table in her room and in a purse that was in that room. Ms.
    DeMarco denies any knowledge of the drugs and paraphernalia found in her room,
    as well as any knowledge of the drugs found [in] Hughess possession.

[6]

At trial, the appellant admitted that as of December 8, 2017  a month
    before the search of her apartment  she was fully aware that Mr. Hughes was
    trafficking drugs and using her home for that purpose. A text message she sent
    Mr. Hughes that day (among others) made this clear:

and have fun finding a place to keep your shit and to sell your
    drugs out of, because Ill be damned if Im going to keep heating my fucking
    house out and putting my freedom in jeopardy

[7]

However, she testified that in the period between December 8, 2017, and
    the search on January 9, 2018, she and Mr. Hughes had broken up, and he was in
    rehab and no longer dealing drugs.

[8]

The trial judge found the appellant not credible and concluded that the
    Crown had proven beyond a reasonable doubt that she was aware that Hughes
    possessed drugs for sale from her residence. He gave a number of reasons for so
    concluding.

[9]

First, the appellant was in her apartment with Mr. Hughes when the police
    arrived and had to have been fully aware of the drugs in it, as well as the methamphetamine
    in her room. The trial judge did not believe her testimony that the police had rearranged
    certain items in her room, including her purse.

[10]

Second,
    the appellant testified that the purpose of the private surveillance system in
    her apartment was to provide security for the backyard area from which her
    bicycle had been stolen. However, the trial judge noted, the camera was not
    focused on that area, and its presence was not advertised in any way that might
    frighten potential thieves. Instead, the camera was focused on the entry area
    to the unit, allowing surveillance of who came to the door. To this we would
    add that the surveillance system was connected to screens in Mr. Hughes
    bedroom and the living room, and that the fire escape door could only be opened
    from the inside, again consistent with an active drug trade.

[11]

Third,
    police surveillance in the several days before the search warrant was executed showed
    numerous individuals going to the residence for short visits and leaving
    shortly thereafter, consistent with the sale of drugs from that residence. At
    trial, the appellant explained the visits on the basis that the visitors wanted
    to cheer up Mr. Hughes, who was not particularly well at the time.

[12]

Fourth,
    the appellant testified that the large amount of cash found on Mr. Hughes was
    to pay overdue rent and a hydro bill. The trial judge found that this testimony
    was largely self-serving, or convenient, and that the presence of such a
    large amount of cash was consistent with a drug trafficking operation.

[13]

The
    trial judge concluded, based on the evidence summarized above, that the
    appellant was aware that Hughes possessed drugs for sale from her residence.
    In the trial judges view: That knowledge is sufficient to establish the
    requisite degree of knowledge and control of the drugs for the purpose of
    trafficking, leading to convictions on those charges.

[14]

On
    appeal, duty counsel argues that the text messages on Mr. Hughes cellphone
    evidencing drug transactions were hearsay statements adduced for the truth of
    their contents and presumptively inadmissible. Trial defence counsel did not
    object to the admission of these statements.

[15]

It
    is correct that the trial judge referred to Mr. Hughes texts to persons other
    than the appellant and said that they made it clear he was selling drugs in the
    days before the search (the Impugned Statement). However, the Impugned
    Statement must be read in context. It came as part of the trial judges assessment
    of the credibility of the appellants assertion that between December 8, 2017,
    and January 9, 2018, Mr. Hughes had gone into rehab and to her knowledge was no
    longer selling drugs. Before making the Impugned Statement, he said, That
    explanation, however, flies in the face of reality. Even if the trial judge
    erred in considering the texts for the truth of their contents, given the
    evidence set out above, that error was not overriding.

[16]

The
    appellant has not established that the trial judge made any palpable and
    overriding error of fact, or any overriding legal error. The conviction appeal
    is dismissed.

[17]

In
    terms of the sentence appeal, we make three points. First, neither duty counsel
    nor the appellant made submissions on this at the oral hearing of the appeal.
    Second, Mr. Hughes pleaded guilty to one trafficking charge in exchange for the
    withdrawal of the other charges against him and received a sentence of four
    years. Third, in relation to the appellant, the Crown sought a three-year penitentiary
    term, expressly noting that she was not the principal actor in the offences.
    The defence submitted that a two-year sentence would be appropriate, which the trial
    judge accepted. He reasoned that although the appellant did not play an active
    role in trafficking the drugs, she provided some degree of safety and security
    for Mr. Hughes and a place from which he could sell these very serious drugs.

[18]

In
    her written material, the appellant argues that the trial judge failed to give
    adequate weight to her clean record and her previous history as a law-abiding
    citizen.

[19]

We
    do not agree.

[20]

The
    trial judge noted that the appellant was a relatively youthful first offender with
    some prospect of rehabilitation. However, despite being bright and capable,
    with some academic strengths and positive future goals, she had abused drugs
    and let herself be led astray by a negative and criminal peer group.

[21]

The
    trial judge expressed grave concern about trafficking in fentanyl and its
    effects in our society as an aggravating factor. In considering the question of
    proportionality, the trial judge noted his view that the four-year sentence for
    Mr. Hughes was on the light side.

[22]

The
    trial judge made no error in the sentencing principles he applied. Deference is
    due to his decision, based on
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089, at para. 48.

[23]

Leave
    to appeal sentence is allowed but the sentence appeal is dismissed.

E.E. Gillese J.A.

P. Lauwers J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Disher, 2020 ONCA 710

DATE: 20201109

DOCKET: C68327 and C68459

Feldman, Gillese and Miller
    JJ.A.

DOCKET: C68327

BETWEEN

Her Majesty the Queen

Respondent

and

John Disher

Appellant

DOCKET:C68459

AND BETWEEN

Her Majesty the Queen

Respondent

and

Reana Weaver

Appellant

Jeffery Couse, for the appellant John
    Disher

Leah Gensey, for the appellant Reana
    Weaver

Tanit Gilliam, for the respondent

Heard by videoconference: October 8, 2020

On appeal from the sentences imposed on October
    18, 2019, and December 17, 2019, by Justice James A. Ramsay of the Superior
    Court of Justice.

Gillese J.A
.:

I.

OVERVIEW

[1]

These two sentence appeals arise from events
    that took place on October 18, 2017. That day, police executed a search warrant
    on John Dishers unoccupied hotel room in Welland, Ontario, and seized packets
    containing 42.6 grams of mixed powder substances from a safe in the room. The
    substances included heroin, fentanyl, and derivatives of fentanyl. Carfentanil
    was found in one of the packets. The police also seized 47.5 grams of marijuana,
    two spring-loaded knives, and packaging material consistent with trafficking.

[2]

That evening, the police conducted a traffic
    stop and arrested Mr. Disher and his girlfriend, Reana Weaver. Mr. Disher was seen
    to be throwing baggies out of the car window. The baggies weighed a total of 1.1
    grams and contained a combination of fentanyl and other substances. Mr. Disher
    had in his possession a pair of brass knuckles, a cell phone, and currency
    ($250). He was subject to a weapons prohibition at the time. Ms. Weaver was
    found to have $190 in her purse, along with a baggie containing methamphetamine
    and another baggie containing residue of heroin and cocaine.

[3]

At the time of his arrest, Mr. Disher had been on
    release on recognizance for only two weeks on other drug charges.

[4]

On the first day of trial, Mr. Disher pleaded
    guilty to all charges against him. He was convicted of a number of drug
    offences, possession of the proceeds of crime, possession of a prohibited
    weapon, breach of probation, and breach of recognizance.

[5]

At Mr. Dishers sentencing hearing, the Crown
    asked for a sentence of 12 years imprisonment. The defence sought a sentence in
    the range of five to seven years.

[6]

The sentencing judge found that Mr. Disher was
    the principal actor in the drug trafficking and that the heroin being
    trafficked was adulterated with Schedule I substances that included cocaine,
    fentanyl, analogues of fentanyl, and, in one packet, carfentanil. The
    sentencing judge stated that fentanyl is a particular problem in Welland, where
    the offences took place. He noted that, at Ms. Weavers trial, he heard that
    all heroin sold in Welland is now adulterated with fentanyl. He stated that the
    presence of fentanyl, and especially carfentanil, took the offences outside the
    normal sentencing range for heroin trafficking. The gravity of the offences, coupled
    with Mr. Dishers serious criminal record  which included numerous drug
    trafficking convictions  led the sentencing judge to conclude that the
    sentence fell in the range suggested by the Crown. He sentenced Mr. Disher to
    12 years imprisonment less credit of 7.5 months for pre-trial custody.

[7]

Ms. Weaver, his co-accused, pleaded guilty to possessing
    a controlled substance (the methamphetamine located on her person at the time
    of arrest), breach of recognizance, and two counts of breach of probation. The
    matter went to trial on the balance of the offences.

[8]

Mr. Disher voluntarily testified at Ms. Weavers
    trial as part of her case. He claimed sole ownership of the drugs and weapons.
    His evidence was rejected and Ms. Weaver was convicted of the offences before
    the court.

[9]

At the time of the offences, Ms. Weaver was 22
    years old and had had minimal involvement with the criminal justice system
    having received a conditional discharge and two years probation in 2016 for
    drug offences. She was also prohibited from associating with Mr. Disher. By the
    time the matter reached sentencing, she was 24 years old.

[10]

At Ms. Weavers sentencing hearing, the Crown sought
    a custodial sentence of eight years and the defence sought a custodial sentence
    of two years. She was sentenced to seven years imprisonment less credit of six
    months for pre-trial custody.

[11]

Mr. Disher and Ms. Weaver both apply for leave to
    appeal against sentence. If this court grants leave and allows his appeal, Mr.
    Disher asks that it substitute a sentence of eight years imprisonment. Ms.
    Weaver asks that her appeal be allowed and a sentence of four years
    imprisonment be substituted.

[12]

For the reasons that follow, I would grant leave
    and allow both appeals.

II.

THE GOVERNING LEGAL PRINCIPLES

[13]

Pursuant to
R. v. Lacasse
, 2015 SCC 64,
    [2015] 3 S.C.R. 1089, the following legal principles govern sentence appeals.

[14]

Sentencing judges are in the best position to
    determine just and appropriate sentences. Therefore, as an appellate court,
    this court must show considerable deference to the sentences imposed by trial
    courts. Appellate interference is warranted in only two situations. First,
    where the sentencing judge commits an error in principle, fails to consider a
    relevant factor, or erroneously considers an aggravating or mitigating factor,
    and the error had an impact on the sentence (
Lacasse
,
at para.
    44). Second, where the sentence imposed is demonstrably unfit (
Lacasse
,
at para. 51). In both situations, the appellate court may set aside the
    sentence and conduct its own analysis to determine a fit sentence in all the
    circumstances.

III.

MR. DISHERS SENTENCE APPEAL

A.

The Issues

[15]

Mr. Disher acknowledges that deterrence and
    denunciation are the primary sentencing objectives for the offences for which
    he was sentenced and does not dispute the aggravating factors identified by the
    sentencing judge. He submits, however, that:

a.

the sentencing judge erred in unreasonably discounting the
    mitigating factor of his rehabilitative efforts while in custody awaiting trial;
    failing to consider his prospects for rehabilitation; and rejecting undisputed
    facts in his pre-sentence report without affording counsel the opportunity to
    make submissions; and

b.

12 years imprisonment is a demonstrably unfit sentence.

B.

Analysis

[16]

I accept that the sentencing judge erred by
    failing to consider Mr. Dishers rehabilitative prospects. As that error
    necessarily impacted on the length of the sentence imposed, I would allow his
    appeal on that basis.

The Complaints
    in the First Ground of Appeal

[17]

I begin by considering the three complaints Mr.
    Disher makes on the first ground of appeal.

[18]

Mr. Dishers first complaint is that the
    sentencing judge unreasonably discounted his rehabilitative attempts while in
    custody. By rehabilitative attempts, Mr. Disher is referring to the numerous
    programs he took while in custody awaiting trial on these offences. Those
    programs include, among others, the successful completion of: Planning for
    discharge; Discovery of areas of growth; Exploration of family life dynamics;
    and two sessions of the four-part Celebrate Recovery program.

[19]

The sentencing judge listed the programs Mr.
    Disher had taken while in prison and stated, None of this has deterred him
    from or is likely to deter him from drug trafficking by itself. Respectfully,
    the conclusion that the programs had not deterred Mr. Disher from trafficking reflects
    a misapprehension of the evidence. Mr. Disher took the programs after the
    offences had been committed and while he was in prison awaiting trial. Therefore,
    the programs could not have had an impact on his commission of the offences for
    which he was being sentenced. The real question for the sentencing judge was
    whether the programs Mr. Disher completed might assist in his rehabilitation
    going forward.

[20]

In my view, the answer to that question is
    yes: the programs might have a mitigating effect on Mr. Dishers rehabilitation.
    The pre-sentence report discussed Mr. Dishers estrangement from his family and
    the role that may have played in his lifestyle choices. One program that he
    completed explored family dynamics and might assist him in coming to grip with
    those issues. More significantly, in my view, are the programs that Mr. Disher completed
    that may assist with his drug addiction. While in custody, he completed the
    Celebrate Recovery program not once but twice. This is a positive step in dealing
    with his addiction. Further, Mr. Disher has struggled to find employment in the
    past and some of the programs he took should assist him in finding and
    maintaining employment on release from custody.

[21]

Mr. Dishers second complaint is that the
    sentencing judge failed to address his rehabilitative potential. The Crown submits
    that the sentencing judge was addressing rehabilitation when he described Mr.
    Disher as a hardened, long-time, street-level drug trafficker who had not
    been deterred by reformatory and the equivalent of penitentiary sentences (the
    Statement).

[22]

I do not accept the Crowns submission. Section
    718 of the
Criminal Code

states that, The fundamental purpose
    of sentencing is to protect society and to contribute  to respect for the law
    and the maintenance of a just, peaceful and safe society by imposing just
    sanctions that have one or more of six specified objectives.  Deterring the
    offender and assisting in rehabilitating offenders are two of those objectives
     and both must be addressed when crafting a just sanction that meets the
    fundamental purpose enunciated in s. 718. In the Statement, the sentencing
    judge is addressing only whether past sentences had fulfilled the objective of
    specific deterrence. Nowhere in his reasons does the sentencing judge expressly
    advert to the rehabilitation objective or consider Mr. Dishers rehabilitative
    prospects.

[23]

Mr. Dishers third complaint relates to the sentencing
    judges treatment of his pre-sentence report (the Report). The Report had
    been prepared in 2019 for a prior sentencing proceeding before the same
    sentencing judge. The sentencing judge said this about the Report:

I have the benefit of a pre-sentence report
    that was prepared in 2019 when apparently I sentenced him to the six months on
    top of his substantial dead time. I treat with caution the self-reported
    factors in this.
Im sure that at this point of time with all his experience
    Mr. Disher knows his way around a pre-sentence report.

He claims a
    rough childhood although when asked for specifics hes not sure of physical
    violence,
but he thinks his stepfather was likely
    threatening. And
he gives as an example that he was required to complete
    multiple household chores at an early age. That does not strike me as abuse.
I think it was rough to the extent that his father left, his mother remarried,
    and I think he was rebellious from day one. [Emphasis added.]

[24]

Mr. Disher submits that these paragraphs show
    two errors on the part of the sentencing judge. First, he contends that because
    the Crown did not dispute the facts in the Report, if the sentencing judge was
    not satisfied with its contents, he should have given counsel the opportunity
    to either adduce additional evidence or make submissions on the reliability of
    the evidence in it. Second, he says that the sentencing judge misapprehended
    the evidence in the Report. The sentencing judges reference to the completion
    of household chores at an early age as an example of abuse ignores the Reports
    recounting of repeated physical assaults at the hands of his stepfather from
    the time he was a child until he was an adult.

[25]

I accept this submission. The sentencing judge was
    obliged to consider Mr. Dishers rehabilitative potential and the Report ought
    to have played a role in that consideration. His remark that Mr. Disher knows
    his way around a pre-sentence report suggests that he did not accept as
    reliable the information in the Report. As the Crown took no issue with the Report,
    if the sentencing judge was not satisfied with its reliability, at a minimum,
    he should have advised counsel of his concerns so that counsel had an
    opportunity to address them.

[26]

Further, the quoted passage shows that the
    sentencing judge misapprehended Mr. Dishers information about the physical
    abuse he had suffered at the hands of his stepfather. There is nothing in the Report
    to suggest that Mr. Disher was unsure about the physical and emotional abuse he
    had suffered. Nor did Mr. Disher suggest that having to complete household
    chores from an early age was the abusive behaviour that he had endured. To say
    that Mr. Dishers childhood had been rough because his father left, his
    mother remarried, and he had been rebellious from day one, misapprehends the Reports
    recounting of repeated physical and emotional abuse by his stepfather that
    continued until he was an adult.

Imposing a Fit
    Sentence

[27]

Lacasse

is clear: an error in sentencing justifies appellate intervention only
    when it appears that the error had an impact on the sentence (at para. 44). While
    I agree with the sentencing judge that deterrence and denunciation were the primary
    sentencing objectives, it was nonetheless an error to fail to consider Mr.
    Dishers rehabilitative potential. In my view, it appears that the error had an
    impact on the length of sentence imposed. As this court said in
R. v.
    Johnson
, 2012 ONCA 339, 291 O.A.C. 350, at para. 18, albeit in the context
    of consecutive sentences and the totality principle,
where the ultimate effect
    of the combined sentences is to deprive the offender of any hope of release or
    rehabilitation, the functional value of these sentencing principles meets the
    point of diminishing returns.
Mr. Disher was 34 years
    old at the time of sentencing and had not before spent time in the
    penitentiary. While his prospects for rehabilitation may not have been strong,
    it was important that the sentencing judge consider them and what effect the
    combined sentences would have on his prospects for rehabilitation. Accordingly,
    appellate intervention is justified and it falls to this court to determine a
    fit sentence in all the circumstances.

[28]

The aggravating factors are significant in Mr.
    Dishers case. At the time of sentencing, he had a serious and related criminal
    record that spanned 15 years, without any significant or recent gaps in his
    offending behaviour. Within two weeks of release on recognizance for other trafficking
    charges, he was trafficking in adulterated heroin that contained fentanyl and,
    in one instance, carfentanil  and he was running his business in Welland,
    where fentanyl is a particular problem.

[29]

In terms of mitigating factors, Mr. Disher has a
    long-standing addiction to crystal methamphetamine. He pleaded guilty to the
    offences, although on the first day of trial. Importantly, while Mr. Disher had
    previously been sentenced to the equivalent of penitentiary time, he had never
    actually been to the penitentiary. And, he had demonstrated some rehabilitative
    potential by having chosen to participate in virtually every program available
    to him while he awaited trial, including programs directed at addressing his
    addiction.

[30]

The caselaw on sentences for trafficking in fentanyl
    is still developing. There are only a few such appellate decisions, which I
    discuss below.  I also set out some relevant lower court decisions. Caution in
    considering the caselaw is warranted not just because of its inchoate state but
    also because of the difficulties in comparing quantities of fentanyl given the
    differences between patches, pills and powder. Bearing in mind these notes of caution,
    the caselaw indicates that a sentence of eight years is consistent with that
    received by offenders similarly situated to Mr. Disher, a mid-level recidivist
    trafficker of heroin adulterated with fentanyl.

[31]

The appellant and respondent suggest that the following
    appellate cases warrant consideration:
R. v. Loor
, 2017 ONCA 696,
    [2017] O.J. No. 4628, and the cases of Mr. Loors associates in the trafficking
    ring;
R. v. Lloyd
,
2019 BCCA

128, [2019] B.C.J. No. 631;
    and
R. v. Sidhu
, 2019 ONCA 880, [2019] O.J. No. 5630.

[32]

At para. 50 of
Loor
,
this court
    said that offenders who traffic significant amounts of fentanyl should expect
    to receive significant penitentiary sentences. It upheld a six-year sentence
    for Mr. Loor, a member of a drug-trafficking ring who had trafficked in 45
    fentanyl patches obtained through a forged prescription. Although Mr. Loor was
    a low-level member of the trafficking ring, he played a necessary role in it.
    He had a criminal record that included a prior conviction for trafficking.

[33]

The two higher-ups in the trafficking scheme in
    which Mr. Loor was involved ultimately received sentences of six years and
    eight years respectively. See
R. v. Baks
, 2015 ONCA 560, [2015] O.J.
    No. 3996, supplementary reasons reported at 2015 ONCA 615, reducing a nine-year
    sentence to six years, with five years concurrent allocated to the 20 fentanyl
    trafficking counts and
R. v. Sinclair
, 2016 ONCA 683, [2016] O.J. No.
    4737, reducing a nine-year sentence to eight years.

[34]

In
Lloyd
,
the British Columbia
    Court of Appeal upheld a six-year sentence for an offender found in possession
    of 51.29 grams of heroin mixed with fentanyl. The offences arose from a violent
    incident with the police and included a number of other convictions, including
    for weapons. Mr. Lloyd had ten prior convictions for possession for the purpose
    of trafficking.

[35]

In
Sidhu
, this court upheld a net
    sentence of eight years and two months for an offender who trafficked in
    fentanyl, had a prior, related record, and returned to trafficking shortly after
    being released from custody. The quantity of fentanyl in
Sidhu
was 89
    grams, more than twice that which Mr. Disher had.
[1]

[36]

Lower court cases are also consistent with a sentence
    of eight years. See, for example,
R. v. Baldwin
,
[2018] O.J. No.
    2447 (C.J.) (eight years; quantity of fentanyl was 115.09 grams);
R. v.
    Shevalier
, [2017] O.J. No. 7247 (C.J.) (eight years; quantity of fentanyl
    was 28.13 grams). While the Crown pointed to
R. v. Vezina
, 2017 ONCJ
    775, [2017] O.J. No. 6027, where the offender was sentenced to 12 years less
    pre-trial custody, I do not see it as particularly helpful because the offender
    in
Vezina

had 204.49 grams of a blend of heroin and fentanyl
    for the purposes of trafficking  approximately five times the amount Mr.
    Disher possessed.

[37]

Accordingly, I would sentence Mr. Disher to eight
    years imprisonment less 7.5 months credit for pre-trial custody.

[38]

In light of my conclusion on the first ground of
    appeal, it is unnecessary to consider the second ground.

IV.

MS. WEAVERS SENTENCE APPEAL

A.

The Pre-Sentence Report

[39]

Ms. Weaver was 22 years old at the time of the
    offences and 24 at the time of sentencing. A pre-sentence report was prepared
    for the sentencing hearing (the Report), in consultation with Ms. Weaver, her
    paternal grandmother, her brother, and the operations manager for the Segue
    Opioid Addiction Methadone Clinic. The Report contained the following
    information.

[40]

Ms. Weaver was born in Victoria, British
    Columbia. She identifies as M
é
tis.
    Ms. Weaver was placed in the care of her paternal grandparents in Hamilton, Ontario,
    from the age of one to twelve or thirteen
[2]
because of her parents substance abuse and involvement with criminal activity.
    She had two biological siblings who were also raised by her paternal
    grandparents. Her younger sister died of an accidental drug overdose in June
    2018.

[41]

Ms. Weavers childhood and formative years were
    difficult. Her grandfather was an alcoholic and she witnessed domestic violence
    in the home. At the age of 12, she went to live with a paternal aunt and
    cousins for two years. She then lived with her biological father for one year,
    during which she became involved with illicit drug use. By the age of 17, she
    was living on her own and working periodically.

[42]

Ms. Weavers grandmother identified that Ms.
    Weaver was fifth-generation Indigenous. She herself had not gone to a
    residential school and neither she nor Ms. Weaver were raised in an Indigenous
    community.

[43]

Ms. Weaver has a grade 11 education and is one
    credit short of obtaining her Ontario Secondary School Diploma. In relation to
    the missing credit, she explained that due to her illicit drug use, she missed
    an exam. While she had received letters of acceptance from two local
    universities, her admission to post-secondary education was compromised as a
    result.

[44]

Ms. Weaver worked in various capacities in the
    service industry from the ages of 16 to 19 but, at the time of the offences,
    she had been unemployed for three years. She expressed interest in securing and
    maintaining employment.

[45]

In 2016, Ms. Weaver was convicted of drug and
    weapon-related offences for which she received a conditional discharge and two
    years probation. At the time of the offences in question, she was bound by a probation
    order that prohibited her from associating with Mr. Disher.

[46]

Ms. Weaver began using ecstasy and cocaine at age
    15. She refrained from drug use between the ages of 16 and 18 and then began
    using drugs again. For the following six years, she used prescription pills,
    hydromorphone, heroin, and crystal methamphetamine on a daily basis.

[47]

Ms. Weaver reported that she had refrained from
    illicit drug use for the preceding five months and had been participating in a
    methadone program prior to her admission into custody. Her participation was
    verified by the operations manager of the clinic Ms. Weaver attended. The
    operations manager also confirmed that Ms. Weaver had attended the clinic once
    per week to see her physician and once or twice per week to provide a urine
    sample. Ms. Weaver stated that she was willing to attend, and participate in, a
    residential drug-treatment program for a six-month period.

[48]

Following her conviction, Ms. Weaver accepted
    responsibility for her part in the offences, apologized, and expressed remorse.

B.

Reasons for Sentence

[49]

After hearing from the parties at the sentencing
    hearing, the sentencing judge gave a short oral ruling from the bench. He
    listed the offences for which Ms. Weaver had been convicted and gave a
    one-paragraph summary of the circumstances in which they were committed. He
    then gave reasons for sentence of approximately two and a half pages in length.

[50]

The points contained in the reasons for sentence
    are as follows.

·

At the time of sentencing, Ms. Weaver was 24
    years of age, identified as Metis, and was fifth generation Indigenous. Her
    ancestors had not been in residential schools.

·

Ms. Weaver had a rough childhood, told the
    author of the pre-sentence report that she had not used heroin in five months,
    and was amenable to long-term residential rehabilitation.

·

Ms. Weaver was jointly in possession of the
    items in question with Mr. Disher, who was the main actor in the business. She was
    a necessary participant in the business.

·

Heroin is a dangerous drug and essentially all
    heroin sold in Welland is adulterated with fentanyl. The nonmedical use of
    fentanyl is a national crisis and drug users are overdosing in unprecedented
    numbers.

·

The mitigating factors are Ms. Weavers age,
    Indigenous heritage, and heroin addiction.

·

Heroin demands that deterrence be paramount
    and fentanyl and carfentanil do so even more.

·

The breach of recognizance requiring Ms. Weaver to
    stay away from Mr. Disher was serious and flagrant.

[51]

The sentencing judge concluded his reasons with
    the following:

For similar offences involving heroin and
    fentanyl, the provincial judges in Niagara and I have imposed sentences in the
    eight-year range on first offenders or offenders without much of a criminal
    record.

In the circumstances of this particular case
    something like that seems to be about right, subject to a reduction based on
    the offenders Indigenous heritage and taking into account the fact that she is
    an addict.

[52]

He then assigned the sentences for each offence
    to arrive at the equivalent of a seven-year sentence.

C.

The Issues

[53]

Ms. Weaver acknowledges that, in sentencing an
    offender for possession of controlled substances for the purpose of
    trafficking, the sentencing objectives of denunciation and deterrence must play
    a role. However, she contends, the principles of restraint and rehabilitation
    should also have played a significant role in the sentence imposed in this
    case.

[54]

She submits that the sentencing judge erred in:

a.

failing to properly consider the principles of
    restraint and rehabilitation; and

b.

imposing a demonstrably unfit sentence.

D.

Analysis

[55]

I accept Ms. Weavers submission on the first
    issue. As those errors would necessarily impact on the length of the sentence
    imposed, I would allow her appeal on that basis.

[56]

Ms. Weaver was 22 years of age when she
    committed the offences and 24 at the time of sentencing. She had never before
    served a period of incarceration, having received a conditional discharge for
    her convictions for drug and weapon-related offences in 2016. The pre-sentence
    report spoke positively of Ms. Weavers rehabilitative potential. It noted Ms.
    Weavers realistic wishes to apply for post-secondary education and secure
    legitimate employment; the steps she had taken to address her drug addiction, including
    refraining from illicit drug use in the previous five months and a willingness
    to attend a residential treatment program to further address her underlying
    drug addiction; and that she took responsibility for her role in the offences
    and expressed remorse for it. In the circumstances, both the restraint
    principle and rehabilitation were important considerations in fixing the
    appropriate period of incarceration.

[57]

The sentencing judge mentioned Ms. Weavers age,
    her Indigenous heritage, and drug addiction in his reasons. However, he did not
    discuss these matters or indicate what consideration he might have given them
    in determining the length of the sentence. In arriving at a sentence of seven
    years imprisonment, he simply stated that an eight-year sentence was warranted
    and reduced that by one year based on the offenders Indigenous heritage and
    taking into account the fact that she is an addict.

[58]

Significantly, the sentencing judge made no
    reference in his reasons to the restraint principle or how it was consistent
    with the lengthy penitentiary sentence he imposed on a youthful offender who
    had never previously received a custodial sentence.

[59]

The principle of restraint, as reflected in ss.
    718.2(d) and (e) of the
Criminal Code
, directs that a first period of
    incarceration imposed on a young first offender should be as short as possible,
    while giving adequate weight to the principles of general deterrence and denunciation:
R. v. Rocchetta
, 2016 ONCA 577, [2016] O.J. No. 3871, at para. 35. As
    s. 718.2(e) specifically directs, while the restraint principle should be
    considered for all offenders, particular attention should be given to the
    circumstances of Aboriginal offenders, a class of offenders to which Ms. Weaver
    belongs. Sentencing judges are to give effect to the principles in s. 718.2(e) even
    where the offence is serious and the sentence involves imprisonment:
R. v.
    Batisse
,

2009 ONCA 114, [2009] O.J. No. 452, at para. 36.

[60]

Nor did the sentencing judge address Ms.
    Weavers rehabilitative prospects. He stated that deterrence was the paramount
    sentencing consideration, given the seriousness of the substances being
    trafficked. While I agree that general deterrence and denunciation are important
    factors to be considered in a case such as this, it is an error to fail to
    consider individual deterrence and rehabilitation, especially when sentencing a
    first offender:
Batisse
, at para. 34;
R. v. Thurairajah
, 2008
    ONCA 91, at para. 41; and
R. v. Mohenu
, 2019 ONCA 291, [2019] O.J. No.
    2003, at paras. 12-13.

[61]

The sentencing judges failure to consider the
    principles of restraint and rehabilitation necessarily impacted materially the
    length of the jail term he imposed. Accordingly, appellant intervention is
    justified:
Lacasse
,
at paras. 43-44.

[62]

The caselaw indicates that a sentence of four
    years is consistent with sentences for offenders similarly situated to Ms. Weaver,
    including in communities where fentanyl is prevalent and a serious problem.
    See, for example,
R. v. Gagnon
, 2017 ONSC 7470, [2017] O.J. No. 6535 (four
    years less pre-trial custody) and the sentence of imposed on the co-accused Ms.
    Clark in
Shevalier

(four years less pre-trial custody).

[63]

Accordingly, I would impose a sentence of four
    years in prison less credit of six months for time served in pre-trial custody.

[64]

In light of my conclusion on the first ground of
    appeal, it is unnecessary to consider the second ground.

DISPOSITION

[65]

I would grant both Mr. Disher and Ms. Weaver
    leave to appeal sentence.

[66]

For the reasons given, I would allow Mr.
    Dishers appeal and substitute a sentence of eight years imprisonment less
    credit of 7.5 months for pre-trial custody. I would allow Ms. Weavers appeal
    and substitute a sentence of four years imprisonment less credit of six months
    for pre-trial custody.

Released: November 9, 2020 (K.F.)

E.E. Gillese
    J.A.

I agree. K.
    Feldman J.A.

I agree.
    B.W. Miller J.A.

[1]

This courts reasons in
Sidhu

do not refer to the quantity of fentanyl which Mr. Sidhu
    was found to have in his possession. The sentencing judge at first instance, in
    unreported reasons, refers to both 89 and 89.5 grams of fentanyl.

[2]

The record is unclear on whether she was 12 or 13 when she
    left her grandparents home and went to live with her paternal aunt and
    cousins.