



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Peltier, 2013
    ONCA 141

DATE: 20130308

DOCKET: C55065

MacPherson, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Peltier

Appellant

Daniel Santoro, for the appellant

Peter M. Campbell, for the respondent

Heard: January 17, 2013

On appeal from the sentence imposed by Justice Joseph G.
    Quinn of the Superior Court of Justice on July 29, 2011.

MacPherson J.A.:

[1]

The appellant, Adam Peltier, was convicted of three criminal offences
    following a six-day trial before J.G. Quinn J. of the Superior Court of Justice
     possession of crack cocaine for the purpose of trafficking, producing crack
    cocaine, and possession of marijuana.

[2]

The trial judge imposed a sentence of six years imprisonment less 18
    months credit for pre-trial custody for possession of crack cocaine for the
    purpose of trafficking for a net sentence of 54 months.  He also imposed 54
    months concurrent for producing crack cocaine and three months concurrent for
    possession of marijuana.

[3]

The appellant appeals his sentence.

[4]

The facts giving rise to the convictions can be briefly stated. In the
    early morning hours of April 3, 2009, Windsor Police Services received a
    telephone tip from a confidential informant that the informant had purchased a
    quantity of cocaine from the appellant in room 12 of the Bestway Motel. The
    informant also advised that he had observed a Cadillac parked in front of room
    12 and that the appellant had used that vehicle in the past. After confirming
    the appellants registration at the hotel and the presence of a grey Cadillac
    parked outside room 12, Windsor police continued surveillance outside room 12
    and began to prepare a warrant application for the room. In the meantime,
    officers of the Emergency Services Unit were instructed to stop the Cadillac if
    it left the motel before a warrant was signed.

[5]

At 11:20 a.m., the appellant was arrested while driving the Cadillac
    approximately five minutes after leaving the Bestway Motel. On his person, the
    police found cocaine and $930 cash. In a subsequent search of the motel room,
    police seized more cocaine, as well as 28 grams of marijuana and $1075 cash.
    The total amount of crack cocaine seized, according to the trial judge, was
    421.5 grams. Expert evidence established that the crack cocaine was worth about
    $21,000 when purchased at the kilogram level and $42,000 when sold at the gram
    level.

[6]

The appellants trial was limited to an application to exclude evidence
    under s. 24(2) of the
Charter of Rights and Freedoms
as a result of
    alleged breaches of ss. 7 and 8. Crown and defence counsel agreed that
    admissible evidence adduced during the
Charter
application would form
    the trial evidence. After a five-day hearing, the
Charter
application
    was dismissed. The Crown filed an expert report on consent, and the appellant
    elected to call no evidence. The trial judge convicted the appellant of the
    three offences set out above.

[7]

The appellant makes three submissions in support of his position that
    the six-year sentence was too high.

[8]

First, the appellant submits that the trial judge did not take proper
    account of his youthfulness as an indicator of his potential rehabilitation. This
    failure, says the appellant, puts the judge offside of what this court said in
R.
    v. Borde
(2003), 63 O.R. (3d) 417, at para. 36:

The length of a first penitentiary sentence for a youthful
    offender should rarely be determined solely by the objectives of denunciation
    and general deterrence.  Where, as here, the offender has not previously
    been to penitentiary or served a long adult sentence, the courts ought to
    proceed on the basis that the shortest possible sentence will achieve the
    relevant objectives.

[9]

The appellant couples this submission with the submission that since his
    longest period of incarceration for his previous offences was two months in
    custody, a six-year sentence for these offences is too much of an increase.

[10]

I
    do not accept these submissions. The trial judge recognized that the sentence
    imposed had to take account of denunciation, deterrence and rehabilitation, and
    he found that these objectives would not be met by a shorter penitentiary
    sentence. In a case involving the production and sale of crack cocaine, he was
    entitled to emphasize, as he did, the need to express the communitys
    denunciation of the sale of crack cocaine to its citizens. He also stated the
    obvious on the issue of deterrence:

The sale of drugs is a for profit crime. The deterrence must be
    such that it would cause a potential drug seller to think seriously about the
    penalty.

[11]

The
    trial judge also specifically addressed rehabilitation and considered the
    principles described in
Borde
. The appellant was 25 years old when he
    committed this set of crimes, whereas the appellant in
Borde
was 18
    when he committed his crimes. The appellant has a long (ten years stretching
    back to 1999), fairly extensive (13 other convictions), and related (two previous
    convictions for drug offences) criminal record. He was charged with and pled
    guilty to another drug-related crime while facing these charges. Taking these
    factors together, it is hard to quarrel with the trial judges observations
    that [t]hese facts do not demonstrate that Mr. Peltier has changed his
    ways.... Mr. Peltiers prospects for rehabilitation are not good.

[12]

Second,
    the appellant contends that the trial judge failed to consider the mitigating fact
    that the appellant kept his trial limited to the
Charter
application
    and, through counsel, invited the trial judge to enter convictions once the
    application was dismissed.

[13]

I
    would reject this submission. The appellant did not plead guilty to the charges.
    The
voir dire
on the
Charter
application involved 11
    witnesses testifying over four days. This was not a mitigating factor.
    Moreover, when the
Charter
application was dismissed, the convictions
    that followed were inevitable, as defence counsel properly recognized.

[14]

Third,
    the appellant submits that a six-year sentence was outside the range of
    sentences imposed for similar offences and similar offenders.

[15]

I
    disagree. The appellant produced crack cocaine, a very dangerous substance. He
    had a substantial amount for sale to the public. In
R. v. Bajada
(2003), 169 O.A.C. 226, at para. 13, this court noted that sentences of five to
    five and one-half years imprisonment are not uncommon for possession of a
    substantial amount of cocaine for the purpose of trafficking following an
    accuseds plea of guilty or where the accused has no prior record. Here, the
    appellant had a previous record for drug offences. He committed another drug
    offence while facing these charges. The appellant was 25 years old  an adult,
    not a youthful offender. The six-year sentence was within the appropriate range
    of sentences and, in these circumstances, was fit.

[16]

I
    note that the trial judge made one small error in his reasons for sentence. He
    said that [t]he defence position is that Mr. Peltier should receive a sentence
    of four years and a pre-trial custody credit of 18 months. In fact, the
    defence position was that a three and one-half year sentence and pre-trial
    custody credit of 18 months would be appropriate. In my view, nothing turns on this
    minor error.

[17]

In
    summary, the trial judge made no error in principle nor did he fail to
    consider, or give inappropriate weight to, any relevant factor. The sentence he
    imposed was fit.

[18]

I
    would dismiss the appeal.

Released: March 8, 2013 (J.C.M.)

J.C. MacPherson J.A.

I agree. E.A. Cronk J.A.

I agree. S.E. Pepall J.A.


