



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Premji, 2021 ONCA 721

DATE: 20211015

DOCKET: C66102

Fairburn A.C.J.O., Doherty and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Noordin Premji

Appellant

Faisal Mirza, for the appellant

Ian Bell, for the respondent

Heard: October 8, 2021 by video conference

On appeal from the sentence imposed on October 10, 2018
    by Justice Leonard Ricchetti of the Superior Court of Justice.

REASONS FOR DECISION

[1]

But for the appellants advanced age (77 years old at the time of
    sentencing), the 13.5-year prison sentence imposed by the trial judge was fit,
    having regard to the very serious nature of the offence and the absence of any
    significant mitigating factors. The trial judge did not, however, consider the
    appellants advanced age as a factor in mitigation of sentence. As the trial
    judge said: There are no mitigating factors.

[2]

As the court noted in
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500,

at para. 74:

[I]n the process of
    determining a just and appropriate fixed-term sentence of imprisonment, the sentencing
    judge should be mindful of the age of the offender in applying the relevant
    principles of sentencing. After a certain point, the utilitarian and normative
    goals of sentencing will eventually begin to exhaust themselves once a
    contemplated sentence starts to surpass any reasonable estimation of the
    offenders remaining natural life span.

[3]

Therefore, in exercising
    discretion under the
Criminal Code
, a sentencing judge should generally refrain from
    imposing a fixed-term sentence which so greatly exceeds an offenders expected
    remaining life span that the traditional goals of sentencing, even general
    deterrence and denunciation, have all but depleted their functional value:
M.
    (C.A.)
, at para. 74.

[4]

The appellants
advanced
    age should have mitigated, to some extent, the very lengthy sentence called for
    in this case.

[5]

The trial judges failure to consider the appellants advanced age
    amounts to an error in principle, having a material impact on the appropriate
    sentence. Accordingly, this court must perform its own sentencing analysis to
    determine a fit sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R.
    1089,

at para. 43;
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th)
    1,

at para. 27.

In doing so, we accept the findings of fact made
    by the trial judge and consider the new information available to us on appeal.

[6]

We have been provided with extensive fresh evidence. The appellants
    health has deteriorated significantly since the time that he was sentenced. In
    light of that evidence, the Crown concedes that there should be some downward adjustment
    of the appellants sentence to take into account that deterioration. However,
    the appellants medical condition cannot overwhelm the principles of sentencing
    so as to result in a sentence which fails entirely to reflect the seriousness
    of the offence or the appellants moral culpability.

[7]

The offence for which the appellant was convicted, heroin importing,
    remains a very serious offence committed by an individual with a previous
    drug-related conviction for which he received a substantial penitentiary
    sentence.

[8]

In the exceptional circumstances, as laid out in the fresh evidence, and
    in light of the Crowns position, we are prepared to vary the appellants
    sentence to nine years. In doing so, we should not be taken as signalling any
    change in this courts approach to sentencing in large-scale drug importing
    cases like this one. The appellants very advanced age and the combination of
    several significant medical problems make this a highly unusual case.

[9]

We reject the suggestion that the appellant should receive a conditional
    sentence because of health-related problems or COVID-19

related
    concerns. A conditional sentence would ignore entirely the proportionality
    principle and denigrate the seriousness of the offence.

[10]

In
    our view, the appellants specific ongoing health-related problems and any COVID-19

related
    problems that may arise from his incarceration are best dealt with by the
    Parole Board of Canada using the powers provided to it under the
Corrections
    and Conditional Release Act
, S.C. 1992, c. 20, s. 121:
R. v.
    Kanthasamy
, 2021 ONCA 32, at para. 11.

Fairburn A.C.J.O.

Doherty J.A.

David Watt J.A.


