



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Klammer, 2017 ONCA 416

DATE: 20170519

DOCKET: C62339

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

BETWEEN

Her Majesty the Queen

Respondent

and

Dustin Klammer

Appellant

Mark C. Halfyard, appearing as
amicus

Kelvin Ramchand, for the respondent

Heard and released orally:  May 9, 2017

On appeal from the conviction entered by Justice S.E.
    Healey of the Superior Court of Justice on December 23, 2015 and the sentence
    imposed on June 17, 2016.

REASONS FOR DECISION

[1]

We reject the appellants argument that his conviction for trafficking
    in fentanyl (six 100 microgram fentanyl patches), possession of fentanyl for
    the purpose of trafficking, and possession of the proceeds of crime are
    unreasonable because the circumstantial evidence could not exclude other
    reasonable inferences that were inconsistent with guilt.

[2]

We agree with the trial judge that, having regard to the interactions
    between the undercover officer, the intermediary and the appellant after the
    officer observed the individual wearing the plaid shorts, the only reasonable
    inference was that the appellant, and not the individual wearing the plaid
    shorts, was in charge of the terms on which the fentanyl would change hands
    and knowingly accepted the proceeds of crime.  Having regard to the evidence as
    a whole, guilt was the only reasonable inference.

[3]

However, we agree with the appellant
    that the trial judge erred in principle in considering his sale of oxycodone
    and conviction for trafficking of that drug while his trial on those charges
    was pending as an aggravating factor (see
R. v. Skolnick
, [1982] 2 S.C.R. 47) and that this error affected the
    sentence he imposed.

[4]

The trial judge sentenced this addict
    to a period of custody of 33 months on all three counts concurrently.  In our
    view, having regard to all of the circumstances of the appellant and the
    quantity of fentanyl at issue, a sentence of 20 months is reasonable for this
    first-time offender.

[5]

Accordingly, the appeal against
    conviction is dismissed, leave to appeal sentence is granted, the appeal of
    sentence is allowed, and the custodial portion of the appellants sentence is
    reduced to 20 months.  The appellant has served seven months, leaving the remaining
    period of 13 months to be served in a reformatory.

Alexandra Hoy A.C.J.O.

K. Feldman J.A.

M.L. Benotto J.A.


