COURT OF APPEAL FOR ONTARIO

CITATION: 1476335 Ontario Inc. v. Frezza,
    2021 ONCA 822

DATE: 20211118

DOCKET: M52811 & M52846 (C69611)

Feldman, van Rensburg and Coroza
    JJ.A.

BETWEEN

1476335
    Ontario Inc., Aldo Rotondi, DAndrea Management

Inc. and Rick DAndrea

Plaintiffs

(Appellants/Moving
    Parties)

and

Brenda
    Frezza, Onorio Frezza, Elio Ascenzo Frezza, Jane

Frezza
and Frezza Management Inc.

Defendants

(
Respondents/Responding
    Parties
)

Anthony J. Gabriele, for the moving
    parties

D. John Kirby, for the responding party
    Brenda Frezza

No one appearing for the responding
    parties Onorio Frezza, Elio Ascenzo Frezza and Jane Frezza

Heard: November 5, 2021 by video conference

Feldman J.A.:

A.

Introduction

[1]

There were two motions before the court. The
    first asked the court to determine whether it has jurisdiction to hear the
    appeal. The second asked for interim relief pending appeal. During the hearing,
    the court determined that it did not have jurisdiction to hear the appeal or to
    grant interim relief, but proceeded to hear submissions on whether the court
    should seek the permission of the Chief Justice of the Superior Court to sit as
    the Divisional Court for the purpose of considering whether to grant the
    request for interim relief.

B.

Background

[2]

The moving parties are the plaintiffs in an action
    seeking to set aside three alleged fraudulent conveyances. The conveyances were
    made in or around 2003, after litigation had been commenced by the current
    defendants Elio Ascenzo Frezza, Onorio Frezza, and Frezza Management Inc., as
    well as others, against a number of parties including the current plaintiffs. This
    prior litigation was dismissed in 2016 and resulted in a significant costs
    award in favour of the current plaintiffs.

[3]

While the current plaintiffs have recovered some
    of the costs awarded to them, $700,000 in costs remains outstanding. In the
    current action, the plaintiffs allege that during the prior litigation, the
    current defendants Elio Ascenzo Frezza, Onorio Frezza, and Frezza Management
    Inc. fraudulently transferred three properties to Jane Frezza and Brenda Frezza,
    who were not parties to the prior litigation, for nominal consideration. The
    plaintiffs say that, as a result of these transfers, they are unable to enforce
    the costs order from the prior litigation against those defendants. They
    commenced the action for fraudulent conveyance against both the transferors and
    the recipients of the properties, the current defendants, and sought a
    certificate of pending litigation to prevent the disposal of the properties.
    One property is scheduled to be sold in January 2022.

[4]

The plaintiffs motion for a certificate of pending
    litigation over two properties that are now owned by Brenda Frezza was
    dismissed by the motion judge on the basis that the fraudulent conveyance
    action is statute-barred. He also found that in any event, a balancing of the equities
    favoured the defendants. The plaintiffs took two steps to appeal: they sought
    leave to appeal to the Divisional Court on the basis that the order denying the
    certificate may be interlocutory, and at the same time they filed a notice of
    appeal to this court on the basis that the order may be final. The appellants
    adopted this unusual procedure on the basis that they were uncertain whether
    the motion judges order was final or interlocutory. The respondents took no
    position on the jurisdiction issue.

[5]

The moving parties asked, and the Divisional
    Court agreed on this occasion, to hold the leave motion in abeyance while a
    motion for directions was brought in this court to ask the court to determine
    the jurisdiction issue. The moving parties also brought a second motion in this
    court asking the court to grant leave to issue and register a certificate of
    pending litigation as interim relief pending appeal. Brown J.A., sitting in
    chambers, referred the interim relief motion to the panel to be heard following
    the panels determination whether this court has the jurisdiction to hear the
    appeal:
1476335 Ontario Inc. v. Frezza
, 2021 ONCA 732. The panel heard
    both motions.

C.

Issues and Analysis

(1)

Is the order under appeal a final or an interlocutory
    order?

[6]

The first issue to be determined was whether the
    order under appeal was a final or an interlocutory order. An appeal lies to the
    Court of Appeal from a final order of a judge of the Superior Court of Justice for
    an amount of $50,000 or more:
Courts of Justice Act
, R.S.O. 1990, c. C.43,
    ss. 6(1)(b), 19(1)(a), and 19(1.2). A final order involving less than $50,000
    is appealed to the Divisional Court: ss. 19(1)(a) and 19(1.2). An
    interlocutory order of a Superior Court judge is appealed to the Divisional
    Court, and requires leave of that court: s.19(1)(b). Rule 62.02(4) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, sets out the grounds for
    granting leave to appeal to the Divisional Court:

62.02(4) Leave to appeal from an interlocutory
    order shall not be granted unless,

(a) there is a
    conflicting decision by another judge or court in Ontario or elsewhere on the
    matter involved in the proposed appeal and it is, in the opinion of the panel
    hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to
    the panel hearing the motion good reason to doubt the correctness of the order
    in question and the proposed appeal involves matters of such importance that,
    in the panels opinion, leave to appeal should be granted.

[7]

A final order disposes of the litigation, or
    finally disposes of part of the litigation:
Ball v. Donais
(1993), 13
    O.R. (3d) 322 (C.A.). An interlocutory order disposes of the issue raised, most
    often a procedural issue, but the litigation proceeds:
Hendrickson v. Kallio
,
    [1932] O.R. 675 (C.A.), at p. 678.

[8]

As is apparent from the strict requirements for
    leave to be granted to appeal interlocutory orders, appeals from such orders
    are intended to be very limited. On the other hand, appeals from final orders
    are as of right. As a result, the issue of whether an order is final or
    interlocutory determines not only which court has jurisdiction, but also the
    extent to which an appeal will lie from the order.

[9]

The order sought to be appealed in this case is
    an order denying leave to issue and register a certificate of pending
    litigation. A number of authorities from this court have held that an order
    granting or lifting a certificate of pending litigation is an interlocutory
    order: see
Archer v. Archer
(1975), 11 O.R. (2d) 432 (C.A.);
Amphenol
    Canada Corp. v. Sundaram
, 2019 ONCA 932, 56 C.P.C. (8th) 307;
561895
    Ontario Ltd. v. Metropolitan Trust Co. of Canada
(1997), 14 C.P.C. (4th)
    195 (Ont. C.A.), leave to appeal to S.C.C. refused, 26191 (November 20, 1997).
    The reason is that the granting or lifting of the certificate does not finally
    determine the litigation, which is ongoing. The refusal to grant a certificate
    is analogous. It does not finally determine any issue in the litigation, which
    remains ongoing. It is therefore an interlocutory order. As a result, the
    appeal does not lie to the Court of Appeal but to the Divisional Court with
    leave.

[10]

The appellants asked the court whether the order
    could be viewed as final based on the reasons of the motion judge. The motion
    judges primary reason for denying the certificate was that the action is
    statute-barred. If that finding is binding on a trial or summary judgment
    judge, then the order that included that finding would be a final order. The
    answer is no: the reasons for denying the motion for a certificate of pending
    litigation are not binding on the trial or summary judgment judge.

[11]

The issue of whether the reasons for dismissing
    a summary judgment motion constitute binding findings was recently discussed by
    this court in
Skunk v. Ketash
, 2016 ONCA 841, 135 O.R. (3d) 180, where
    Hoy A.C.J.O. set out the following helpful summary of the effect of this
    courts jurisprudence, at para. 58:

58      In an attempt to provide greater
    clarity, I would summarize the effect of this courts jurisprudence as follows:

1. The general rule is that an order
    dismissing a motion for summary judgment is an interlocutory, and not a final,
    order.

2. If a party argues that the motion judge
    made a final, binding determination of law that disposes of the substantive
    rights of one of the parties (Binding Legal Determination) in dismissing the
    summary judgment motion, then this court will consider whether the motion judges
    order invokes r. 20.04(4) and references the legal determination that the party
    argues is a Binding Legal Determination.

3. If the order does not invoke r. 20.04(4)
    and reference the legal determination that the party argues is a Binding Legal
    Determination, the court will usually consider whether the precise scope of the
    point of law determined by the motion judge is clear and whether it is clear
    that the motion judge intended that her determination be binding on the parties
    at trial. In this case, it was not clear that the motion judge intended his
    determination to be binding on the parties at trial.

[12]

On a summary judgment motion, the
Rules
contemplate that binding determinations may be made by the summary judgment motion
    judge, either by invoking r. 20.04(4) or otherwise indicating that one or more
    findings is intended to be final and binding. This is because a summary
    judgment motion is intended to dispose of the action, if appropriate, either by
    granting or denying judgment, or, if that is not possible, to narrow the issues
    that require a trial.

[13]

However, the same approach is not appropriate
    and therefore not available (except possibly on the request or consent of the
    parties) on a motion that seeks specific interim relief, but does not seek to
    finally dispose of an issue in the action. On such motions, the record is
    tailored to the relief sought and may not be the full record required for the
    final determination of an issue in the litigation. Further, the motion does not
    request a final determination in the relief sought. As a result, the order that
    flows from the reasons will only address the relief sought.

[14]

In this case, the reasons of the motion judge
    for denying the certificate of pending litigation do not bind the trial or
    summary judgment judge. They do not constitute the final determination of the
    limitation issue because the court was not asked to determine that issue for
    the purpose of granting or denying judgment. The full record for finally
    determining the issue may or may not have been placed before the motion judge,
    but only enough to allow the motion judge to make or deny the discretionary
    order that was sought. In any event, the court was not asked to make a final
    determination of the limitation issue.

(2)

Where the court does not have jurisdiction over
    the appeal, can it make an interim order pending the appeal?

[15]

Having found that the order sought to be
    appealed is an interlocutory order which can only be appealed to the Divisional
    Court with leave of that court, the next issue that was argued was the motion
    for interim relief.

[16]

Section 134(2) of the
Courts of Justice Act
states:

On motion, a court to which a motion for leave
    to appeal is made or to which an appeal is taken may make any interim order
    that is considered just to prevent prejudice to a party pending the appeal.

[17]

I agree with Brown J.A. that where the court
    does not have jurisdiction to hear the appeal, it cannot make an interim order
    because such an order can only be made pending the appeal.

[18]

There have been rare occasions in the past where
    an appeal has been wrongly commenced in this court and proceeded to an oral
    hearing before anyone realized that the appeal was in the wrong court, and where,
    on consent of all parties, the court has requested the authority of the Chief
    Justice of the Superior Court to sit as the Divisional Court in order to save
    time and cost:
Courts of Justice Act
, ss. 13 and 18;
Tomec v.
    Economical Mutual Insurance Company
, 2019 ONCA 839, 148 O.R. (3d) 433, at
    paras. 12-14.

[19]

This is not an appropriate case to seek to apply
    this procedure. The appeal to this court was not brought by mistake. The
    appellants have their leave to appeal motion ready to proceed in the Divisional
    Court. The appellants may seek their interim relief from the Divisional Court,
    if they decide to proceed with the appeal to that court.

D.

Conclusion

[20]

In the result, the appeal in this court is
    quashed. The parties agreed that costs in the amount of $5,000, inclusive of
    disbursements and HST, be awarded to the successful party. As this motion was
    in essence a motion for the direction of the court, without opposition, the costs
    of $5,000, which will include the $250 awarded by Brown J.A., will be in the
    cause of the action.

Released: November 18, 2021 K.F.

K.
    Feldman J.A.

I
    agree. K. van Rensburg J.A.

I agree. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Mohamud, 2021 ONCA 820

DATE: 20211118

DOCKET: C68812

Doherty, Pardu and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdullqadir Mohamud

Appellant

Chris Sewrattan and Ashley Sewrattan,
    for the appellant

James D. Sutton, for the respondent

Heard: November 12, 2021

On appeal from the conviction entered by
    Justice J. Bourgeois of the Ontario Court of Justice on December 13, 2019.

REASONS FOR DECISION

[1]

The appellant was convicted after a trial by a
    judge alone of possession of crack cocaine for the purposes of trafficking. He
    appealed, claiming the verdict was unreasonable. At the end of oral argument,
    the court dismissed the appeal with reasons to follow. These are the reasons.

[2]

An undercover officer arranged to purchase
    cocaine from a dealer named Capone. The undercover officer received a call
    telling him the drugs were two minutes away. A black Volkswagen pulled up and
    parked right in front of the undercover officers car.

[3]

The driver of the Volkswagen motioned the
    undercover officer over to the vehicle. The undercover officer spoke with the
    driver and satisfied himself that the driver was there to deliver the cocaine
    the undercover officer had arranged to purchase from Capone. The officer told
    the driver he had to return to his car to get his money. Other officers moved
    in quickly and arrested the occupants of the Volkswagen.

[4]

There were three people in the car. The
    appellant was seated in the front passengers seat.

[5]

Various forms of contraband were found in
    different places in the car. A ripped plastic baggy containing 5.5 grams of
    crack cocaine was found on the front passenger seat where the appellant had
    been sitting.

[6]

The appellant did not testify and did not call a
    defence.

[7]

The trial judge acquitted the appellant on
    charges relating to the rest of the contraband found in the car, but convicted
    him of possession for the purpose of trafficking in respect of the crack
    cocaine found on the front passenger seat where the appellant had been sitting.

[8]

The trial judge found, as a fact, that the
    appellant was either sitting on the baggy containing the crack cocaine, or had
    it between his legs when the police commenced the takedown at the vehicle.
    The trial judge rejected the submission that the baggy was placed on the seat
    during the fracas caused by the takedown. The trial judge also rejected the
    submission that the baggy was wedged between the front seat and the passenger
    side door of the vehicle.

[9]

On appeal, the appellant submitted the
    conviction was unreasonable. Counsel argued the trial judge failed to consider that
    the appellant may have unwittingly sat on the baggy containing the cocaine and
    had no knowledge of the baggy or its contents. Counsel submitted that the
    suggestion the appellant could have unwittingly sat on the baggy was a
    reasonable one in the circumstances and could not be dismissed as speculation. It
    followed, argued counsel, that the Crown did not meet its burden of proving
    that the only reasonable inference from the evidence was that the appellant
    knew the baggy was on the seat and knew there was cocaine in the baggy.

[10]

There is some attraction in the appellants
    argument. People unknowingly sit on objects on car seats from time-to-time.
    There was also no evidence other than the appellants presence in the vehicle
    when the drug transaction was to occur connecting the appellant to the drug sale
    arranged by the undercover officer with Capone.

[11]

In response, the Crown emphasized two features
    of this case. First, the appellant did not testify and offer any explanation
    for how he came either to be sitting on the baggy or sitting with the baggy
    between his legs. As the Crown correctly observed, this court is entitled to
    consider the failure to testify in assessing the reasonableness of a verdict:
R.
    v. Pannu
, 2015 ONCA 677, at para. 175.

[12]

Second, the Crown submitted that counsel for the
    appellant at trial did not suggest, among the various possibilities suggested
    by counsel, that the appellant my have been unknowingly sitting on the baggy
    containing the crack cocaine. Crown counsel argued that the failure of trial counsel
    to suggest his client may have been unknowingly sitting on the baggy speaks
    volumes about the reasonableness of the inference advanced for the first time on
    appeal. Crown counsel stressed that the bag contained hard, marble-like pieces
    of crack cocaine. He argued it would not be reasonable to infer that someone
    could be sitting on those objects without realizing it.

[13]

In
R. v. Villaroman
, 2016 SCC 33, at
    para. 71, Cromwell J. said this about unreasonable verdict arguments in the
    context of circumstantial evidence cases:

It is fundamentally for the trier of fact to
    draw the line in each case that separates reasonable doubt from speculation.
    The trier of facts assessment can be set aside only where it is unreasonable.
    While the Crowns case was not overwhelming, my view is that it was reasonable
    for the judge to conclude that the evidence as a whole excluded all reasonable
    alternatives to guilt.

[14]

It is difficult for this court to reverse a
    conviction on the basis that the trial judge failed to consider a reasonable
    inference inconsistent with guilt when competent and diligent trial counsel for
    the appellant never suggested that inference was one which could reasonably
    arise on the evidence. The failure of counsel, who was obviously very familiar
    with the evidence, to suggest that it was reasonable to think the appellant may
    have been unknowingly sitting on the crack cocaine speaks to the implausibility
    of that explanation.

[15]

As in
Villaroman
, this was not an
    overwhelming circumstantial case. We are satisfied, however, it was open to the
    trial judge to conclude beyond a reasonable doubt that the appellant had
    physical possession of the baggy containing the crack cocaine when the takedown
    occurred and knew what was in the baggy. The contents were plainly visible.

[16]

The appeal is dismissed.

Doherty J.A.

G. Pardu J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Royal Bank of Canada v. Mundo
    Media Ltd., 2021 ONCA 832

DATE: 20211118

DOCKET: C69137

Fairburn A.C.J.O., Roberts J.A.
    and Van Melle J. (
ad hoc
)

In the
    matter of Section 101 of the
Courts of Justice Act
, R.S.O. 1990
    c.C.43, as amended, and in the matter of Section 243(1) of the
Bankruptcy
    and Insolvency Act
, R.S.C. 1985, c. B-3, as amended

BETWEEN

Royal Bank of Canada

Applicant

and

Mundo
    Media Ltd., Mundo Inc., 2538853 Ontario Ltd., 2518769 Ontario

Ltd., 2307521
    Ontario Inc., 36 Labs, LLC., Active Signal Marketing, LLC,

Find Click
    Engage, LLC, Fli Digital, Inc., Mundo Media (US), LLC,

M Zone
    Marketing Inc., Appthis Holdings, Inc., Movil Wave S.A.R.L.,

Mundo Media (Luxembourg) S.A.R.L., and Mogenio S.A.

Respondents

Richard Howell and David Schatzker, for
    the appellant Vdopia Inc.

Scott
    McGrath and Rachel Bengino, for Ernst & Young Inc., in its capacity as
    court-appointed receiver in the within proceeding

Heard and released orally:
    November 12, 2021 by video conference

On appeal from the order of Justice Glenn
    A. Hainey of the Superior Court of Justice, dated January 18, 2021.

REASONS FOR DECISION

[1]

The appellant, Vdopia Inc., appeals the order requiring it to pay the
    amount of US$373,731.23 to the Court-appointed receiver and manager of the
    respondents. This amount represents unpaid accounts for advertising services
    that were rendered to the appellant prior to the receivership order.

[2]

The appellants principal submission is that the motion judge erred in
    granting this order in light of the fact that the appellant has an outstanding
    counterclaim for equitable set-off. The appellant maintains that its
    counterclaim, if successful, will eliminate or at least greatly reduce any
    indebtedness that it may have.

[3]

We see no error. The motion judges finding of the appellants
    indebtedness is firmly grounded in the record. The motion judge clearly
    addressed the set-off issue in paragraph 7 of his endorsement, finding that the
    appellant had failed to adduce any evidence to support that claim,
    notwithstanding it had ample notice of the Receivers position with respect to
    the amount owing. The motion judge was correct; there was no evidence
    supporting the appellants claim for set-off.

[4]

There is no basis to interfere with the motion judges order.
    Accordingly, the appeal is dismissed. We also see no basis to stay the
    enforcement of the motion judges order.

[5]

The Receiver and Manager, Ernst & Young, is entitled to its costs of
    the appeal payable within 30 days by the appellant in the amount of $8,500,
    inclusive of disbursements and applicable taxes.

Fairburn
    A.C.J.O

L.B.
    Roberts J.A.

Van
    Melle, J. (ad hoc)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Buffone, 2021 ONCA 825

DATE: 20211119

DOCKET: C64424

Doherty, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Vito Buffone and Jeffrey Kompon

Respondents

Tanit Gillium, Amber Pashuk and Brian
    Puddington, for the appellant

Mark Halfyard and Colleen McKeown, for
    the respondent Vito Buffone

Frank Addario and William Thompson, for
    the respondent Jeffrey Kompon

Heard: September 15, 2021 by video conference

On appeal from the sentences imposed on September
    28, 2017, by Justice James A. Ramsay of the Superior Court of Justice.

Gillese J.A.:

I.
OVERVIEW

[1]

Vito Buffone and Jeffrey Kompon (the
    Respondents) were the leaders of a sophisticated criminal organization that oversaw
    and directed the importation and trafficking of two tonnes of cocaine into Ontario
    in a three-year period. According to the Crown, it was the largest importation
    of cocaine ever prosecuted in Ontario.

[2]

After a lengthy jury trial, the Respondents were
    convicted of: possession of cocaine for the purpose of trafficking; trafficking
    cocaine; conspiracy to import and possess cocaine for the purpose of
    trafficking; and, committing offences in association with a criminal
    organization. Mr. Kompon was also convicted of possessing proceeds of crime.

[3]

Mr. Buffone was given a global sentence of 22
    years imprisonment (less one year for pre-sentence custody and restrictive
    bail) and Mr. Kompon a global sentence of 20 years imprisonment (less 18
    months credit for pre-sentence custody and restrictive bail). The sentencing
    judge also imposed a fine in lieu of forfeiture for the seized funds that Mr.
    Kompon used to fund his defence.

[4]

The Respondents appealed their convictions. The
    Crown appealed the sentences.

[5]

Mr. Kompon also appealed against sentence,
    arguing that the sentencing judge erred by imposing a fine in lieu of
    forfeiture. In light of
R. v. Rafilovich
, 2019 SCC 51, 442 D.L.R. (4th)
    539, which was issued after the sentencing in this case, the Crown conceded this
    matter. In
Rafilovich
,
the Supreme Court concluded that,
    generally, a judge should not impose a fine in lieu of forfeiture for funds
    that have been judicially returned for the payment of reasonable legal expenses
    associated with a defendants criminal defence: at para. 74.

[6]

In separate reasons, this court dismissed the conviction
    appeals.
[1]
These reasons address the sentence appeals.

[7]

For the reasons that follow, I would allow the Crowns
    sentence appeal and sentence each of the Respondents to life imprisonment. I
    would also allow Mr. Kompons sentence appeal.

II.
BACKGROUND

[8]

Between 2011 and 2014, the Respondents headed up
    a sophisticated criminal organization that imported and distributed some two
    tonnes of cocaine into Canada. The cocaine was hidden inside large stone
    boulders, first imported from Mexico and later from Brazil. The boulders were shipped
    to a warehouse near Port Colborne, Ontario, where the cocaine was extracted. The
    Respondents organization imported all of the cocaine, some of which they sold
    for profit and some of which they passed to other criminal organizations to
    traffic. Evidence showed that the cocaine was 93 percent pure when it arrived
    in Canada.

[9]

The Respondents, along with 12 others, were
    arrested on September 22, 2014, following a three-year police investigation
    into the cocaine importation scheme. On take down day, the police executed
    search warrants at approximately 30 locations. In addition to the seizure of
    cocaine, officers seized a vast number of documents and approximately 100
    electronic devices, including laptop computers and cell phones, some of which
    were encrypted.

[10]

Some co-accused pleaded guilty. Five others settled
    the proceedings against them by admitting facts sufficient to convict them and
    offering no defence. They were sentenced based on joint submissions.

[11]

The trial against the Respondents proceeded
    before a judge and jury in the spring of 2017. It ran for approximately four
    months. The Crown called over 100 witnesses, including experts on cocaine
    trafficking, proceeds of crime, ion mobile spectrometry, and digital forensics.
    It also filed approximately 450 exhibits to prove the existence and scope of
    the multi-year drug importation and trafficking operation. This evidence
    included intercepted and seized communications, Spanish language translation of
    communications and documents, as well as accounting records documenting the
    quantities of cocaine imported, warehoused and sold, and the costs paid and
    profits earned.

[12]

After the 50-day jury trial, the Respondents
    were convicted of the various offences as set out above.

[13]

At the time of sentencing, Mr. Buffone and Mr.
    Kompon were 53 and 46 years old, respectively. Neither had a criminal record of
    significance. The Crown argued that, given the quantity of cocaine and the
    roles played by the Respondents in the criminal organization, only life
    sentences were appropriate. The defence position was that a range of 18 to 21
    years was appropriate, less credit for pre-sentence custody and restrictive
    bail.

[14]

In his reasons for sentence, the sentencing
    judge set out the following sentences imposed on six co-accused. The first five
    were the products of joint submissions and the sixth was imposed following a
    guilty plea.

i.

Raul Bulhosen: 18 years for possession of
    cocaine for the purpose of trafficking, conspiracy to import, possession of
    proceeds, and money laundering;

ii.

Borja Vilalta-Castellanos: 17 years for
    trafficking cocaine, conspiracy to import, and money laundering;

iii.

Marco Cipollone: 12.5 years for conspiracy to
    import cocaine;

iv.

John Edward Oliver: 12.5 years for trafficking
    cocaine, conspiracy to import, possession of a firearm knowing he did not have
    a licence, and possession of a firearm without a licence;
[2]

v.

Dean Brennan: 8.25 years for conspiracy to
    import and possess cocaine for the purpose of trafficking; and

vi.

Victor Lucero (who was involved at the tail end
    of the conspiracy): 3 years for conspiracy and proceeds over $5,000.
[3]

[15]

The sentencing judge also referred to the nine-year
    sentence
[4]
imposed on Guy Caputo, a co-accused who pleaded guilty early in the proceedings
    to possession for the purpose of trafficking and possession of proceeds of
    crime over $5,000.

[16]

I will refer to the six co-accused and Mr.
    Caputo collectively as the Co-accused.

[17]

The sentencing judge then made the following
    statement, For the sake of parity I think that [the] sentences I impose must
    be based on this range, depending on factors individual to each offender (the
    Statement).

[18]

I highlight the Statement because, as you will
    see below, it plays an important role in this appeal.

[19]

Next, the sentencing judge observed that there
    was a significant difference between the Respondents and the Co-accused in that
    the former were convicted of the criminal organization offence while the latter
    were not. He found that the Respondents were partners at the head of the criminal
    organization  Mr. Buffone at the apex and Mr. Kompon a bit below him  and
    that both organized the operation so that they took the least risk of being
    caught.

[20]

The sentencing judge noted the following
    mitigating factors in relation to the Respondents. Both were middle-aged family
    men without criminal records of significance. Mr. Kompon had a conviction for
    drinking and driving and Mr. Buffone was fined for possession of a narcotic in
    1986 and possession of stolen property in 1994. Mr. Buffone was pardoned for
    these matters but the pardons were revoked as a result of the convictions in
    this matter. Favourable references from family and friends were before the
    court, showing the Respondents contributions to society.

[21]

However, as the sentencing judge observed, the
    Respondents were involved in a lifestyle of deliberate criminality for over
    three years and caught only because the police had invested significant
    resources in the investigation and made courageous tactical decisions. Both Respondents
    were sophisticated businessmen, making reasonable livings through successful
    legitimate businesses. They were well able to weigh the risks involved against
    the potential benefits of the importation scheme. They gained fantastic
    amounts of money.

[22]

The sentencing judge then spoke of the great
    harm that cocaine has caused to individuals, their families, and the community.
    He referred to caselaw, noting that the quantity of cocaine imported in this
    case was much greater than the hundreds of kilos in those cases. He then imposed
    the following sentences on the Respondents:

Count

Mr. Buffones
          sentence

Mr. Kompons
          sentence

3
          Conspiracy to import and possess cocaine for the purpose of trafficking

20 years
          incarceration

18 years
          incarceration

1
          Possession of cocaine for the purpose of trafficking

15 years
          incarceration, concurrent

18 years
          incarceration, concurrent

2
          Trafficking cocaine

15 years
          incarceration, concurrent

18 years
          incarceration, concurrent

4
          Committing offences in association with a criminal organization

1-year
          incarceration, consecutive (to reflect a sentence of 2 years, reduced by 6
          months for 4 months pre-sentence custody, and further reduced by 6 months
          for restrictive bail)

6 months
          incarceration, consecutive (to reflect a sentence of 2 years, reduced by 1
          year for 8 months pre-sentence custody, and further reduced by 6 months for
          restrictive bail)

6
          Possession of proceeds of crime (over $5,000)

N/A

4 years
          incarceration, concurrent

III.
GROUNDS OF APPEAL

[23]

The Crown submits that the sentencing judge
    erred by:

a.

imposing sentences that are demonstrably unfit and by underemphasizing
    the principles of denunciation, deterrence and of promoting a sense of
    responsibility in the offender;

b.

failing to treat as aggravating that the Respondents were the
    directing minds of a criminal organization;

c.

overemphasizing the parity principle and failing to account for the
    significant mitigation earned by the co-accused who resolved their charges
    early; and,

d.

failing to make an order for delayed parole for the Respondents.

[24]

At the oral hearing of the appeal, the Crown
    advised that it was not pursuing the fourth ground of appeal. Consequently, I
    say nothing more about it.

IV.
THE STANDARD OF REVIEW

[25]

This court must apply a deferential standard of
    review to sentencing decisions. Sentencing judges are in the best position to
    determine just and appropriate sentences and are entitled to considerable
    deference:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    41. Appellate intervention 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 is demonstrably unfit:
Lacasse
,
at
    para. 51. In either situation, the appellate court may set aside the sentence
    and conduct its own analysis to determine a fit sentence in all the
    circumstances.

V.
ANALYSIS

[26]

The parity principle, as codified in s. 718.2(b)
    of the

Criminal Code
, R.S.C. 1985, c. C-46, is that similar
    offenders who commit similar offences in similar circumstances should receive
    similar sentences. The sentencing judge relied on the parity principle in
    determining the sentences he imposed on each of the Respondents. This can be
    seen by recalling the Statement, in which he stated that for the sake of
    parity he had to impose sentences on the Respondents based on the range of
    sentences given to the Co-accused. That range was from 3 to 18 years.

[27]

Although the Respondents and the Co-accused were
    involved in the same conspiracy to import cocaine, in my view, the sentencing
    judge erred in his application of the parity principle. I say this for two
    reasons.

[28]

First, most of the sentences the sentencing
    judge relied on to establish the range for determining the Respondents
    sentences were the result of joint submissions. While the sentencing judge
    referred to this matter, he failed to appreciate that the sentences imposed on these
    co-accused under the joint submissions, lost much of their value as comparators.

[29]

In
R. v. Anthony-Cook
,
2016 SCC
    43, [2016] 2 S.C.R. 204, the Supreme Court established the legal test a
    sentencing court should apply in deciding whether to depart from a joint
    submission on sentence: the court should not depart from such a joint
    submission unless the proposed sentence would bring the administration of
    justice into disrepute or is otherwise contrary to the public interest:
Anthony-Cook
,

at para. 32. In establishing this test, the Court expressly rejected the
    notion that a joint submission on sentence should be measured by determining
    whether it was fit or even demonstrably unfit:
Anthony-Cook
,

at
    paras. 46-47. Justice Moldaver, writing for the Court at para. 48 of
Anthony-Cook
,
explained why:

Further, both the fitness test and the
    appellate demonstrably unfit test suffer from a similar flaw: they are
    designed for different contexts. As such, there is an appreciable risk that the
    approaches which apply to conventional sentencing hearings or sentencing
    appeals will be conflated with the approach that must be adhered to on a joint
    submission. In conventional sentencing hearings, trial judges look at the
    circumstances of the offender and the offence, and the applicable sentencing
    principles. They are not asked to consider the critical systemic benefits that
    flow from joint submissions, namely, the ability of the justice system to
    function fairly and efficiently. Similarly, appellate courts are not bound to
    consider these systemic benefits on a conventional sentencing appeal. The
    public interest test avoids these pitfalls.

[30]

In
R. v. MacLeod
, 2018 SKCA 1, [2018] 5
    W.W.R. 743, at para. 21, the Court of Appeal for Saskatchewan stated that, because
    a sentence based on a joint submission is not directly evaluated for its
    fitness, the sentence imposed on a co-accused under a joint submission
loses
    much of its value as a comparator
when it comes to the sentencing of any
    co-accused who has not entered into a joint submission (emphasis added). I
    agree.

[31]

Consequently, by basing the sentences for the
    Respondents on those imposed on the Co-accused  the large majority of which
    had been sentenced based on joint submissions  the sentencing judge used a range
    of sentences that may or may not have been fit. In short, because the
    Co-accuseds sentences were not fit comparators, the sentencing judge erred in
    relying on them to establish the range on which to determine fit sentences for the
    Respondents.

[32]

Second, in his application of the parity
    principle, the sentencing judge failed to adhere to the proportionality
    principle.

[33]

All sentencing starts with the proportionality principle:
    sentences must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender:
R. v. Friesen
,
2020 SCC 9,

444
    D.L.R. (4th) 1,

at para. 30. The proportionality principle has long been
    central to Canadian sentencing and is now codified as the fundamental
    principle of sentencing in s. 718.1 of the
Criminal Code
:
Friesen
,
at para. 30.

[34]

Parity is an expression of proportionality and a
    consistent application of proportionality will lead to parity:
Friesen
,
    at para. 32. However, an approach that assigns the same sentence to unlike
    cases can achieve neither parity nor proportionality:
Friesen
, at
    para. 32. That is what occurred in the sentencing below.

[35]

This can be seen by comparing Mr. Kompons
    sentence with that of Mr. Bulhosen, one of the Co-accused. Mr. Bulhosen
    was sentenced to 18 years imprisonment for his role in the conspiracy to
    import cocaine. Mr. Kompon was given the same sentence for his role in the
    conspiracy  which fails to account for Mr. Kompon being a leader of the
    criminal organization that established and controlled the conspiracy and that
    he outranked Mr. Bulhosen.

[36]

Further, the sentencing judge offended the
    proportionality principle by failing to properly consider the gravity of the
    offences the Respondents committed and their blameworthiness.

[37]

In terms of the gravity of the offences, when
    imposing sentences for conspiracy to import and possess cocaine for the purpose
    of trafficking, the sentencing judge failed to take into consideration that the
    Respondents committed the offences in association with a criminal organization.
    This he was required to do by s. 718.2(a)(iv) of the
Criminal Code
. It
    was not sufficient, as the Respondents contend, that the sentencing judge
    imposed a consecutive sentence for the offence of having committed the conspiracy
    offence in association with a criminal organization. This aggravating
    circumstance was relevant to the gravity of the offence of conspiracy to import
    and had to be considered when imposing a sentence for that offence. That said,
    the totality principle may, to some extent, moderate the individual sentences
    imposed for the two offences. In any event, as I would impose life sentences
    for the conspiracy to import offences, any potential problem with double
    counting disappears.

[38]

As well, the gravity of the offences required the
    sentencing judge to adequately address the quantity of cocaine that the
    Respondents were responsible for importing into Canada. This he did not do. The
    sentencing judge observed that, in the cocaine importation caselaw he
    considered, the quantity of cocaine was in the hundreds of kilos rather than
    thousands of kilograms as in this case. In view of this significant difference
    in quantity, the sentencing judge said, 19 years is not necessarily the top
    end of the range. However, he then imposed sentences of 18 and 20 years
    respectively on Messrs. Kompon and Buffone for the cocaine importation offences.
    18 years is self-evidently less than 19 years and 20 years is but one year more.
[5]
Neither sentence adequately reflects
    the gravity of the much larger quantities of cocaine that the Respondents were
    responsible for importing.

[39]

Moreover, the sentencing judge failed to take
    into consideration that the Respondents degree of blameworthiness was much
    greater than that of the Co-accused. The Respondents were the bosses  the
    directing minds of the conspiracy. They established the cocaine importation
    operation and stood at its head. The Co-accused took their orders from the
    Respondents.

[40]

These errors on the part of the sentencing judge
    clearly had an impact on the sentences he imposed on the Respondents.
    Consequently, it falls to this court to determine fit sentences for them. In
    the circumstances, it is unnecessary to address the Crowns contention that the
    sentences are demonstrably unfit.

VI.
SENTENCES OF LIFE IMPRISONMENT ARE FIT

[41]

I recognize that the Respondents have no
    criminal records of significance and that they enjoy family and community
    support. Nonetheless, given the gravity of their offences and the degree of their
    blameworthiness, in my view, each should be sentenced to life imprisonment.

[42]

I begin by acknowledging the exceptional nature
    of imposing the maximum sentence:
R. v. Cheddesingh
, 2004 SCC 16, [2004]
    1 S.C.R. 433, at para. 1. However, as the Supreme Court of Canada stated in
R.
    v. L.M.
, 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 22: [T]he maximum
    sentence cannot be reserved for the abstract case of the worst crime committed
    in the worst circumstances.

[43]

I also acknowledge that the Crown has not identified
    a single case in Ontario where a life sentence has been imposed for the
    importation of cocaine.
[6]
A life sentence was imposed in
R. v. Murtaza
, 2013 ONSC 4239, but the
    imported drug in
Murtaza
was heroin  not cocaine. Because heroin is recognized
    as a more harmful substance than cocaine, higher sentences are typically
    imposed for offences involving it:
R. v. Sidhu
, 2009 ONCA 81, 94 O.R.
    (3d) 609, at paras. 12-14.

[44]

I further acknowledge that in
R. v. Malanca
,
    2007 ONCA 859, 88 O.R. (3d) 570, leave to appeal (conviction) refused, [2008]
    S.C.C.A. No. 71, this court set aside a life sentence for the importation of
    cocaine and imposed a sentence of 19 years imprisonment. However, the facts in
Malanca

are very different from those in the present case.

[45]

In
Malanca
,
the appellant was a
    first-time offender, aged 26 or 27, when he was convicted of conspiracy to import
    cocaine and of importing about 270 kilograms of cocaine into Ontario. In
    sentencing the appellant to life imprisonment, the sentencing judge emphasized
    two features as aggravating: the amount of cocaine imported; and, his finding that
    the appellant was the boss of the conspiracy.

[46]

This court set aside the life sentence in
Malanca

because, among other things, the sentencing judge gave little or no
    consideration to the fact that the appellant was a youthful first-time offender
    for whom the life sentence was crushing and which left little room for the
    possibility of his rehabilitation: at paras. 59-60. As well, the court found
    that it was not at all clear that the evidence supported the sentencing judges
    conclusion that the appellant was the boss of the conspiracy:
Malanca
,
    at para. 61.

[47]

It is significant that this court stated, at
    para. 57 of
Malanca
, that while there was no Ontario authority
    imposing a life sentence for the importation of cocaine, a case may cry out
    for such a sentence. This is such a case.

[48]

Unlike
Malanca
,
in which 270
    kilograms of cocaine were imported into Canada, in the present case, the
    Respondents oversaw an importation scheme that resulted in some 2,000 kilograms
    of cocaine being imported into Ontario over a three-year period.

[49]

Sentencing for importation of this quantity of
    cocaine is unprecedented in Ontario. Before this case, the largest conviction
    for cocaine importation into Ontario was in
R. v. Frost
,
2011
    ONSC 6448.
Frost

involved an uncontested trial on an agreed
    statement of facts involving 1,360 kilograms of cocaine. The accused was sentenced
    to 16.5 years imprisonment. His co-conspirator, who pleaded guilty prior to
    his preliminary hearing, was sentenced to 16 years imprisonment based on a
    joint submission. Neither accused in
Frost

was alleged to be
    part of a criminal organization, it was a one-time importation conspiracy, and
    the accused was a first-time offender (his co-conspirator had one prior
    offence).

[50]

The differences between
Frost

and
    the present case are readily apparent. In
Frost
, unlike this case, the
    sentence followed an uncontested trial. In the case of the co-conspirator, the
    sentence was the product of a joint submission following a guilty plea. The amount
    of cocaine was significantly less (1,360 kilograms rather than 2,000 kilograms)
    and there was a single act of importation versus the 47 shipments of boulders
    as indicated by Canada Border Services Agency records in this case. Further,
    and importantly, neither offender in
Frost

was alleged to be part
    of a criminal organization.

[51]

The Respondents also differ materially from the offender
    in
Malanca
. They are not youthful first offenders. Each is a middle-aged,
    sophisticated businessman who enjoyed a good life running a successful,
    legitimate business. They committed the offences purely for greed, without any
    concern for the harm that would be visited on the public in Ontario by the
    importation of such large amounts of cocaine. When serious crimes are
    well-thought out and motivated entirely by greed, the objectives of specific
    and general deterrence must move to the forefront.

[52]

And, significantly, the Respondents were indisputably
    the bosses of the importation conspiracy. On the findings of the sentencing
    judge, the Respondents were the leaders of the criminal organization that oversaw
    and directed the importation and distribution of staggering amounts of cocaine in
    Ontario over a three-year period. They stood at the head of the sophisticated
    criminal organization which: had established trade routes and three large, remote
    commercial warehouses; used secure lines of communication and a fleet of
    company vehicles; employed meticulous record-keeping; and, drew from a
    reservoir of shell companies, false identities, and fraudulent documents to
    lend legitimacy to their operations.

[53]

The Respondents argue that there is little
    practical difference between sentences of life imprisonment and the sentences
    imposed by the sentencing judge because of the points at which the Respondents
    will become eligible for parole. Under the sentences as imposed, the
    Respondents will be eligible for full parole once they have served one-third of
    their sentences  that is, approximately seven years for Mr. Buffone and a
    little over six years for Mr. Kompon. If life sentences are imposed, Mr.
    Buffone and Mr. Kompon will each be eligible for full parole after approximately
    seven years, pursuant to s. 120(2) of the
Corrections and Conditional
    Release Act
, S.C. 1992, c. 20.

[54]

However, as the Respondents rightly acknowledge
    in their factum, the key difference between the sentences imposed and life
    imprisonment is that a person serving a life sentence will always be subject to
    the correctional authorities. An offender who is released on parole continues
    to serve their imposed sentence until its expiry, and during this time, remains
    subject to the conditions of their parole or statutory release:
Corrections
    and Conditional Release Act
, S.C. 1992, c. 20, ss. 128(1)-(2). Therefore,
    under sentences of life imprisonment, the Respondents will remain subject to
    supervision for the remainder of their lives, including upon release from prison.

[55]

In this regard, I would simply echo the words of
    the Supreme Court at para. 62 of
R. v. M. (C.A.)
,
[1996] 1
    S.C.R. 500. Even though the conditions of incarceration are subject to change
    through a grant of parole, if life sentences are imposed, the Respondents would
    remain under the strict control of the parole system and their liberty would be
    significantly curtailed for the full duration of those sentences. Thus, the deterrent
    and denunciatory purposes which animated the life sentences remain in force and
    the goal of specific deterrence is still advanced because they would remain
    supervised to the extent and degree necessary to prevent possible further crime,
    and since they would remain under the shadow of re-incarceration should they
    commit another crime. As well, the goal of denunciation would continue to
    operate because the Respondents would still carry the societal stigma of being
    convicted offenders serving criminal sentences.

[56]

Sentencing continues to be dictated by the fundamental
    principle of proportionality  the sentence must be proportionate to the
    gravity of the offence and the degree of responsibility of the offender:
L.M.
,
    at para. 22. The sheer quantity of cocaine imported, in conjunction with the
    Respondents roles and positions in the sophisticated criminal organization
    that masterminded the importation and trafficking of the cocaine, cries out for
    the maximum sentence of life imprisonment. A life sentence is proportionate to
    the gravity of the offences that the Respondents committed and the degree of
    their responsibility. Life sentences are also necessary to adequately address
    the principles of denunciation and deterrence, to promote a sense of responsibility
    in the Respondents, and to convey the clear message to them, and others, that
    the cost of doing business of this sort is extremely high.

DISPOSITION

[57]

For these reasons, I would grant the Crown leave
    to appeal the sentences and allow the appeals. I would: (i) substitute a
    sentence of life imprisonment on each of the Respondents for count 3,
    conspiracy to import and possess cocaine for the purpose of trafficking; (ii) leave
    unchanged the sentences imposed on counts 1 and 2; and, (iii) leave unchanged
    the sentence on count 6 (Mr. Kompon only).

[58]

The sentencing judge made the sentences imposed
    on count 4 (committing an offence in association with a criminal organization)
    consecutive to the sentences imposed on count 3 (conspiracy to import and possess
    cocaine for the purpose of trafficking). He was required to make the sentences
    on count 4 consecutive by s. 467.14 of the
Criminal Code
.

[59]

The parties acknowledge that the sentences on
    count 4 cannot be made consecutive to life sentences imposed on count 3: see
R.
    v. Sinclair

(1972), 6 C.C.C. (2d) 523 (Ont. C.A.), 172 CanLII 1297 and
R. v. Cadeddu

(1980), 57 C.C.C. (2d) 264 (Ont. C.A.), 1980
    CanLII 2968. However, in light of the express language in s. 467.14, in my
    view, the sentences imposed on count 4 cannot be made concurrent to the life sentences
    on count 3.

[60]

Accordingly, I would not alter the sentences
    imposed on count 4 by the sentencing judge. I would, however, stay the
    imposition of those sentences to avoid the impossibility of imposing a sentence
    to be served consecutively to a life sentence. Staying the imposition of the
    sentences on count 4 would not affect the total sentences imposed nor would it compromise
    the position or role of the parole board, should an application for parole ever
    be made.

[61]

I would also grant Mr. Kompon leave to appeal
    sentence and grant his appeal, on the consent of the Crown, and set aside the
    fine imposed in lieu of forfeiture for seized property used to pay Mr. Kompons
    reasonable legal fees for his defence.

Released: November 19, 2021 D.D.

E.E. Gillese
    J.A.

I agree. Doherty J.A.

I agree. Grant Huscroft J.A.

[1]

R. v. Buffone
, 2021
    ONCA 676.

[2]
In the reasons for sentence, the sentencing judge states that Mr.
    Oliver received a 12-year sentence. However, based on the indictment and the
    reasons for sentence given in respect of Mr. Oliver, it appears that he was
    sentenced to 12.5 years imprisonment
.

[3]
This statement is based on the sentencing judges reasons. However,
    the record calls into question the accuracy of both the offences of which the
    sentencing judge said Mr. Lucero had been convicted and the sentence(s)
    imposed. Neither matter is significant for the purposes of this appeal.

[4]
This appears to be an approximate figure of Mr. Caputos sentence.
    Mr. Caputo was sentenced to 8 years and 5 days, with credit for pre-sentence
    custody of 240 days, for a total sentence of 8 years and 245 days.

[5]
The comparison is between the sentences imposed in the caselaw that
    the sentencing judge considered for large scale cocaine importation with those
    imposed on the Respondents for such offences. For that reason, I have not
    included the additional two-year sentences imposed on the Respondents for
    having committed the offences in association with a criminal organization.

[6]
The courts attention was drawn to
R. c. Fievet
(1997), 191 N.B.R. (2d) 185
    (Prov. Ct.), in which a New Brunswick provincial court imposed a life sentence for
    the importation of 5,400 kilograms of cocaine.