



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Butters, 2017 ONCA 973

DATE: 20171211

DOCKET: C61595

BETWEEN

Hoy A.C.J.O., Doherty and Feldman JJ.A.

Her Majesty the Queen

Respondent

and

Steven Butters

Appellant/Applicant

Janani Shanmuganathan and Erin Dann, for the appellant

Ian Bell, for the respondent

Heard and released orally: December 7, 2017

On appeal from the conviction entered on July 14, 2015 and
    the sentence imposed on June 8, 2016 by Justice Graham R. Wakefield of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant raises two grounds of appeal from conviction.  Neither can
    succeed.  The totality of the evidence, particularly in the absence of any
    evidence from the defence, fully justified the conclusion that the piece of
    crack cocaine in Mr. Taggerts possession came from the appellant through the
    intermediary of Ms. Anthony.  The verdict was not unreasonable.

[2]

The trial judges characterization of the transfer from Ms. Anthony to
    Mr. Taggert as occurring immediately after the transfer from the appellant to
    Ms. Anthony is not a misapprehension of the evidence.  On the totality of the
    evidence including the police testimony, the two transfers were closely connected
    in time.

[3]

The conviction appeal is dismissed.

[4]

The appellant seeks leave to appeal the sentence of 12 months imposed by
    the trial judge.

[5]

We agree with the appellant that the trial judge erred in law by failing
    to take into account that this was a one-off transaction for a very small
    amount of crack cocaine - 0.2 grams - for $20, apparently as a favour for a
    friend and for no profit.  Further, in emphasizing the appellants criminal
    record as a reason to give a significant sentence, the trial judge failed to
    consider the positive steps the appellant had taken to rehabilitate himself
    while living on terms of effective house arrest with his parents, including
    obtaining employment.  Finally, although the trial judge considered the
    significant immigration consequences of a sentence over 6 months for the
    appellant, he declined to take them into account as a mitigating factor
    because, in view of the appellants record, he viewed the appropriate sentence
    as well beyond 6 months.

[6]

In our view, an appropriate sentence for this appellant, given the low
    level of moral culpability for this particular offence and his significant
    progress in turning his life around, is around 6 months, which is at the low
    end of the range referred to in
R. v. Woolcock
, 2002 O.J. No. 4927
    (C.A.).

[7]

In accordance with
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739
    given the immigration consequences of a sentence of 6 months or more, it is
    appropriate to reduce the sentence to one that is under 6 months.  In our view,
    an appropriate sentence in all the circumstances is 160 days.  We credit the
    time the appellant has served in pre-sentence custody and any time spent in
    custody since his sentence as totalling 160 days.  His full sentence has
    therefore been served.

[8]

In the result, leave to appeal sentence is granted, the appeal is
    allowed and the sentence is varied as stated.

Alexandra Hoy
    A.C.J.O.

Doherty J.A.

K. Feldman J.A.


