



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sadikov, 2018 ONCA 609

DATE: 20180703

DOCKET: C61392

Lauwers, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sadyk Sadikov

Appellant

Dirk Derstine and Karen Heath, for the appellant

Amber Pashuk and Amanda Hauk, for the respondent

Heard: June 25, 2018

On appeal from the convictions entered on June 5, 2015
    and the sentence imposed on July 6, 2015 by Justice Julie A. Thorburn of the
    Superior Court of Justice, sitting without a jury, with reasons for judgment
    reported at 2015 ONSC 3653 and reasons for sentence reported at 2015 ONSC 4447.

Nordheimer J.A.:

[1]

Mr. Sadikov was convicted on 18 counts relating to the seizure of drugs
    and a firearm. Ultimately, the appellant was sentenced on 11 counts with the
    other seven counts being conditionally stayed by the operation of the
Kienapple
principle.
[1]
The sentence imposed was three and one-half years on the firearm offences and
    four years consecutive on the drug offences reduced, on a global basis, to
    seven years. The appellant appeals both conviction and sentence.

[2]

The background facts can be briefly stated.  The police were engaged in
    an undercover operation known as Project Hidden Dragon. Between June 6, 2008
    and October 20, 2008 undercover officers observed drug trafficking and use at
    Club 338, located at 338 Adelaide Street West in Toronto. One undercover officer
    engaged in drug transactions with a man who called himself Alex. There was no
    dispute that the appellant is Alex.

[3]

October 20, 2008 was the takedown day.  In the early morning hours,
    the police arrested a number of people including the appellant.  At the same
    time, the police executed a search warrant on the second floor apartment at 306
    Adelaide Street West, an address that the police believed was linked to the
    appellant.  In the apartment, the police seized a large quantity of drugs and a
    firearm.
[2]


[4]

At his first trial, the appellant successfully challenged the search
    warrant.  The evidence of the drugs and the gun was excluded and the appellant
    was acquitted.  The Crown appealed.  This court reversed the quashing of the
    search warrant and ordered a new trial.
[3]

[5]

On this second trial, the appellant again challenged the search warrant. 
    He asserted that his s. 8
Charter
rights had been breached and sought an
    order excluding all evidence obtained from the search warrant,
i.e.
the drugs and the firearm. The trial judge denied the appellants s. 8
    application.  The evidence was admitted at trial and the appellant was
    convicted.

[6]

The appellant appeals his conviction on three main grounds: (i) the
    trial judge erred in finding that there was no s. 8 breach; (ii) the trial
    judges release of amended reasons for judgment disclose an after-the-fact
    justification for the decision; and (iii) the verdict was unreasonable. The appellant
    also seeks leave to appeal his sentence on the ground that the sentence imposed
    was harsh and excessive.

Conviction appeal

[7]

In terms of the alleged s. 8 breach, the trial judge heard evidence from
    the affiant of the Information to Obtain (ITO) along with two sub-affiants. 
    She also had other material relating to the search warrant including the notes
    of various officers.  After reviewing the ITO (with some amplification) and all
    of the evidence adduced on the motion, the trial judge held that there was
    sufficient reliable evidence that might reasonably be believed.  The trial judge
    concluded, at para. 95
[4]
:

I also believe there was sufficient reliable evidence that
    might reasonably be believed that the warrant could be issued to search the
    upper level apartment of 306 Adelaide Street West.

[8]

We do not see any error in the trial judges conclusion regarding the
    search warrant.  There was ample evidence connecting the appellant to drug
    trafficking and to the second floor apartment at 306 Adelaide.  Not only was
    the appellant seen entering and leaving that location on more than one occasion,
    there were the various other salient facts including: (i) the admitted evidence
    of the appellants girlfriend (and co-accused) that the appellant lived in the
    apartment up to the week prior to the execution of the search warrant; (ii) two
    pit bull dogs were seen in the window of the second floor apartment and the
    appellant was known to own two such dogs; and (iii) male clothing of a size and
    type that the appellant was known to wear was found in the apartment.  There
    was sufficient evidence, therefore, to connect the second floor apartment to
    the appellant and to believe that evidence relating to drug trafficking would
    be found in the apartment.

[9]

In terms of the second ground of appeal, there were two sets of reasons
    delivered by the trial judge.  The original reasons for judgment were sent to
    counsel by email on June 10, 2015.  An amended set of reasons for judgment,
    with a particular series of corrections, was released on June 16, 2015.  The
    corrections resulted from an email sent by Crown counsel to the trial judge
    (and copied to defence counsel) pointing out an error in the original reasons. 
    The error was that the first set of reasons referred to the apartment as apartment
    302 at 306 Adelaide.  There was no such apartment.  The trial judge released
    amended reasons changing those references in the original reasons to the
    second floor apartment.

[10]

Unfortunately,
    these changes were made to the reasons before counsel for the appellant had an
    opportunity to make submissions on the subject.  That ought not to have
    happened.  However, I do not see any prejudice to the appellant arising from
    the amendments to the reasons.  In particular, and contrary to the appellants
    submissions, I do not view the changes as substantial.  The changes were
    clearly made to address an obvious error in the description of the apartment. They
    did not, in any way, alter the substantive reasoning or conclusion.  There is
    no foundation for the suggestion that these changes reflect an after-the-fact
    justification for the decision:
R. v. Teskey
, 2007 SCC 25, [2007] 2
    S.C.R. 267.

[11]

In
    terms of the third ground of appeal, there is also no foundation for the
    assertion that the result at trial was unreasonable. The trial judge concluded
    that a finding of guilt was the only reasonable conclusion available on the
    totality of the evidence.  The trial judges finding in that regard was not an
    unreasonable one.  The trial judge provided point by point reasons for why she
    concluded that the only reasonable inference to be drawn from the evidence, as
    a whole, was that the appellant had possession of the drugs and the gun found
    in the second floor apartment.  The appellants dissection of the reasons,
    showing that any given fact might allow for more than one inference, misses the
    point.  It is the totality of the evidence that must be considered.  Further, circumstantial
    evidence does not have to totally exclude other conceivable inferences:
R.
    v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 56.

Sentence appeal

[12]

On
    the sentence appeal, the appellant submits that the total sentence of seven
    years was unreasonable and excessive.  In particular, the appellant says that
    the trial judge erred in imposing sentences for the firearm offences
    consecutive to the drug sentences.

[13]

Generally,
    sentences for offences arising out of the same transaction or incident should
    be concurrent:
R. v. Gummer
(1983), 1 O.A.C. 141 (C.A.), [1983] O.J.
    No. 181, at para. 13.  In reaching that determination, the court must determine
    if the acts constituting the offence were part of a linked series of acts
    within a single endeavour:
R. v. Li
, 2009 BCCA 85 at para. 42.  If
    so, concurrent sentences are appropriate.  There is an exception to that normal
    rule, however, as this court explained in
Gummer
.  That exception
    applies where the offences constitute invasions of different legally protected
    interests.  The trial judge justified the consecutive sentences, in this case,
    on that basis.

[14]

This
    issue was addressed in
R. v. Delchev
, 2014 ONCA 448, 323 O.A.C. 19. 
    That case involved a similar combination of drugs and guns.  The trial judge
    imposed a global sentence of 42 months.  The Crown appealed and submitted that
    the sentence ought to have been seven years.  In doing so, the Crown
    specifically submitted that the drug sentences ought to have been consecutive
    to the firearms sentences.  This court rejected that argument, finding, at
    para. 34, that there was no absolute rule that drugs and weapons convictions
    must attract consecutive sentences in all cases.

[15]

This
    point was also made in
R. v. Borecky
, 2013 BCCA 163, 298 C.C.C. (3d)
    180 where Hinkson J.A. said, at para. 25:

I do not agree that sentences must be consecutive in all cases
    where an offender is convicted of both drug and weapons charges and see no
    error on the part of the sentencing judge in declining to apply such an
    imperative, which is not supported by legislation or case law.

[16]

The
    decision to impose consecutive as opposed to concurrent sentences is a matter
    of discretion for the sentencing judge.  An appellate court ought not to
    interfere with that decision unless it reflects an error in principle.  As
    Sopinka J. said in
R. v. McDonnell
, [1997] 1 S.C.R. 948, at para. 46:

In my opinion, the decision to order concurrent or consecutive
    sentences should be treated with the same deference owed by appellate courts to
    sentencing judges concerning the length of sentences ordered. The rationale for
    deference with respect to the length of sentence, clearly stated in both
Shropshire
and
M. (C.A.),
applies equally to the decision to order concurrent or
    consecutive sentences. In both setting duration and the type of sentence, the
    sentencing judge exercises his or her discretion based on his or her first-hand
    knowledge of the case; it is not for an appellate court to intervene absent an
    error in principle, unless the sentencing judge ignored factors or imposed a
    sentence which, considered in its entirety, is demonstrably unfit.

[17]

I
    see no error in principle in the trial judges conclusion.  There are clearly
    different legally protected interests in play in this case.  On the one hand, society
    has an interest in ensuring that people do not possess illegal substances (much
    less traffic in them).  On the other hand, society also has a separate interest
    in ensuring that persons do not possess illegal firearms.  While the fact that
    the gun was found in the execution of a search focussed on drugs might well
    have justified a concurrent sentence for the drug and gun offences in this
    case, the imposition of consecutive sentences cannot be said to be an error in
    principle.  In the end result, the global sentence imposed is always subject to
    the totality principle.

[18]

In
    my view, the overall sentences that the trial judge fixed for the drug offences
    (4 years) and for the firearms offences (3 ½ years) were within the accepted
    range, although at the low end for the drug offences given the quantities involved. 
    There is no reason to conclude that the total sentence of seven years, after
    the trial judge applied the totality principle, was other than a fit sentence.

Conclusion

[19]

The
    conviction appeal is dismissed.  Leave to appeal sentence is granted but the
    sentence appeal is also dismissed.

Released: P.L. July 3, 2018

I.V.B.
    Nordheimer J.A.

I
    agree. P. Lauwers J.A.

I
    agree. K. van Rensburg J.A.





[1]

R. v. Kienapple
, [1975] 1 S.C.R. 729



[2]

There were almost three kilograms of methamphetamine/MDMA
    found along with a kilogram of ketamine. In total, approximately 39,000
    individual doses of drugs were found with a value estimated at $675,000.



[3]

R. v. Sadikov
, 2014 ONCA 72, 314
    O.A.C. 357



[4]

R. v. Sadikov
, 2015 ONSC 3112


