



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rage, 2018 ONCA 211

DATE: 20180302

DOCKET: C62888

Strathy C.J.O., Simmons and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdullahi Rage

Appellant

Faisal Mirza, for the appellant

Bari Crackower, for the respondent

Heard: February 28, 2018

On appeal from the conviction entered by Justice Graeme
    Mew of the Superior Court of Justice on April 29, 2016, with reasons reported
    at 2016 ONSC 2973, and the sentence imposed on November 3, 2016.

REASONS FOR DECISION

[1]

The appellant was convicted of three counts of
    trafficking cocaine and one count of possession of cocaine for the purpose of
    trafficking.  He was also convicted of possession of marihuana. The appellant
    was sentenced to two years imprisonment, to be followed by three years
    probation.

[2]

The appellant appeals his conviction and sentence. As
    part of his sentence appeal, he has brought an application for the admission of
    fresh evidence.

[3]

For the reasons that follow, we dismiss the conviction
    appeal and the sentence appeal.

Conviction Appeal

[4]

On his conviction appeal, the appellant submits that
    the trial judge: (i) reversed the onus by drawing an adverse inference from his
    failure to call his employer as a witness; (ii) improperly relied on
    cross-examination on an affidavit sworn by him as part of a
Rowbotham
application; and (iii) made adverse factual findings insufficiently
    grounded in the evidence. We do not give effect to any of these grounds of
    appeal.

[5]

The adverse inference submission is based solely on the
    sentence emphasized below in paragraph 78 of the trial judges reasons:

[78]

Mr.
    Rage says that Mr. Ahmed owed him $2,500 for a motorcycle. He implied that he
    had used his employers resources to purchase the motorcycle and that he (Mr.
    Rage) owed $2,500 to his employer.
There was no evidence from the employer
    or other evidence corroborating this
. Mr. Rage admitted meeting with Mr.
    Ahmed twice on 5 October 2011 but says he did so just so Mr. Ahmed could tell
    him, twice, that he did not have the money. It makes no sense.

[79]

And despite the fact that he had $3,850 in his
    apartment, he claimed that his employer had effectively fronted him $2,500 to
    buy the motorcycle for Mr. Ahmed. Despite his protestations that he needed
    money from Mr. Ahmed in cash to pay the $2,500 to his boss, he had
    significantly more than that amount sitting in his dresser in his apartment.

[6]


In our view, there was no reversal of onus and the
    trial judge did not draw an adverse inference. Rather, he found that the
    appellants evidence that sought to justify his meetings with a drug trafficker
    (Mr. Ahmed) as part of his employment duties was not capable of belief. This
    was an available finding on the evidence and there is no basis for appellate
    interference. Read fairly and in context, the impugned sentence in the trial
    judges reasons was nothing more than a reference to the available evidence on
    the point.

[7]

The appellant submits that the trial judge wrongly relied
    upon an apparent inconsistency elicited during his cross-examination on his
Rowbotham
affidavit in rejecting his evidence about why he rented luxury
    vehicles. We disagree that he relied on the inconsistency. While the trial
    judge briefly mentioned the affidavit when reviewing the appellants evidence,
    there was no further reference to it in his analysis on this or any other
    credibility finding. It was open to the trial judge to reject the appellants
    explanation that he drove such vehicles as part of his minimum wage job at a
    car dealership as a matter of common sense and given the expert testimony that
    use of rental cars is an indication of drug dealing.

[8]

With respect to the other impugned factual findings, we
    are of the view that they were all grounded in the evidence and available to
    the trial judge. For example, unchallenged expert evidence supported the
    finding that two pieces of metal discovered in the appellants home were part
    of a cocaine press. The fact that the pieces fit together was also inconsistent
    with the appellants position that they were unrelated pieces of metal from his
    welding class.

Sentence Appeal

[9]

We dismiss the application for fresh evidence. In our
    view, the proposed fresh evidence would not have impacted the decision below as
    it is largely a reiteration of the information submitted to the trial judge during
    the sentencing proceeding regarding the appellants personal circumstances.

[10]

The appellant asserts that the trial judge erred in not imposing a
    conditional sentence.  It is well established in the jurisprudence that a trial
    judges decision regarding the appropriateness of a conditional sentence is
    entitled to considerable deference:
R. v. Peterson
(2005), 201 C.C.C. (3d) 220 (Ont. C.A.), at para. 58.

[11]

In this case, it is clear from his reasons for sentence that the
    trial judge was alive to the applicable factors for the imposition of a
    conditional sentence but concluded that a penitentiary sentence was warranted
    and that a conditional sentence would not give sufficient weight to the
    objectives of general and specific deterrence or adequately denounce the
    appellants criminal conduct.

[12]

The appellant argues that the trial judge erred by not considering
    the over representation of African-Canadians in the nations prison system as a
    basis for ordering a conditional sentence. We note that this argument was not
    raised before the trial judge, so it is difficult to find fault in his failure
    to deal with it.

[13]

In any event, the comments of this court in
R. v. Borde

(2003), 63 O.R. (3d) 417 (C.A.) are apt. In that case
    Rosenberg J.A. found that, 
the
    principles that are generally applicable to all offenders, including African
    Canadians, are sufficiently broad and flexible to enable a sentencing court in
    appropriate cases to consider both the systemic and background factors that may
    have played a role in the commission of the offence and the values of the
    community from which the offender comes (para. 32).

[14]

We accept the Crowns submission that the flexible
    approach to sentencing described by Rosenberg J.A. is precisely what happened
    in this case. The trial judge noted that the sentencing range for possession of
    a substantial amount of cocaine for the purpose of trafficking was from five to
    eight years imprisonment. He then went on to craft a sentence that was well
    below the range he identified and in so doing, adequately took into account the
    appellants particular circumstances.

[15]

In summary, we are not satisfied that the trial judge made any error
    in principle or that the sentence is unfit so as to warrant appellate
    interference.

Disposition

[16]

The appeal is dismissed. The application for fresh evidence is
    dismissed. Leave to appeal sentence is granted but the sentence appeal is
    dismissed.

G.R. Strathy C.J.O.

Janet Simmons J.A.

C.W. Hourigan J.A.


