



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGregor, 2017 ONCA 399

DATE: 20170518

DOCKET: C62174

Feldman, van Rensburg and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jordan McGregor

Respondent

Allyson Ratsoy, for the appellant

Richard Addelman, for the respondent

Heard: March 13, 2017

On appeal from the sentence imposed on April 29, 2016 by
    Justice Robert L. Maranger of the Superior Court.

REASONS FOR DECISION

[1]

This is a Crown appeal against sentence.

[2]

The respondent was a long-time distributor of
    cocaine for a criminal organization. He was charged with offences committed in
    2012-2013, but admitted on wiretaps that he had been trafficking in cocaine as
    a distributor for an organized crime gang for over ten years and that he had also
    acted as an enforcer. Following his arrest in October 2013, he was released on
    bail. In February 2015, he was re-arrested for numerous breaches of
    recognizance and for possession of 17 oxycodone pills for which he had no
    prescription. His bail was revoked pursuant to s. 524(4) of the
Criminal
    Code
and he remained in custody until his sentencing.

[3]

He pleaded guilty in May 2015 but was not
    sentenced until April 2016. He served one year, 69 days in pre-sentence
    custody.

[4]

After his guilty plea, the respondent was
    sentenced to seven years and 69 days imprisonment, broken down as follows: five
    years for conspiracy to traffic cocaine, five years to be served concurrently
    for trafficking in cocaine, two years and 69 days to be served consecutively
    for committing an indictable offence for the benefit of a criminal
    organization, one year to be served concurrently for possession of oxycodone
    and one year on each of the seven counts for breach of recognizance, to be
    served concurrently. The sentencing judge gave 1:1 credit for pre-sentence
    custody in accordance with ss. 719(3) and (3.1) of the
Criminal Code
. He applied the credit to the sentence for the criminal
    organization offence, thereby reducing it to under two years.

[5]

The Crown raises three arguments on appeal.

[6]

First, the Crown says that the sentencing judge
    erred in applying pre-sentence custody credit to the sentence for the criminal
    organization offence rather than to one of the other sentences. Pursuant to s.
    743.6(1.2) of the
Criminal Code
, the court is
    presumptively required to delay parole to one half of the sentence or ten
    years, whichever is less, for an offender receiving a sentence of imprisonment
    of two years or more on conviction of an offence for the benefit of a criminal
    organization. Also the sentence is to be served consecutive to any other
    sentence imposed:
Criminal Code
, s. 467.14.

[7]

The Crown submits that the sentencing judges
    approach, which reduced the length of the sentence for the criminal
    organization offence to under two years, had the effect of avoiding the
    statutory consequence regarding parole eligibility and therefore undermined the
    intended effect of this section, which is to enhance punishment for offences
    involving criminal organizations.

[8]

We do not accept this submission. While it is
    clear that the intent of the quoted provisions is to enhance the severity of
    sentences imposed for an offence involving criminal organizations, there is
    nothing in the
Criminal Code
that prohibits a
    judge from applying the pre-sentence custody in the manner that was done in
    this case. Furthermore, the Crown acknowledged in oral argument that, as
    submitted by counsel for the respondent, because of the total length of the
    sentence imposed in this case, the appellants parole eligibility will not be
    affected by the approach taken by the sentencing judge. Although he did not say
    so, this consequence may well have informed his decision.

[9]

Second, the Crown asserts that the sentencing
    judge erred in making the breach of recognizance and possession of oxycodone
    sentences concurrent to the other sentences when the respondent committed these
    offences 16 months after his initial arrest, and when there was no nexus
    between the two sets of offences. While the sentencing judge was entitled to
    impose concurrent sentences after applying the totality principle, he did not
    advert to totality in his reasons for sentence.

[10]

We agree that in the normal course, the sentence
    for the breaches and possession of oxycodone would be consecutive to the other
    sentences because they were entirely separate offences committed later in time,
    and constituted breaches of his release terms. However, it is clear from a
    review of the entire sentencing reasons as well as the sentences imposed on
    other members caught in the same police project that the sentencing judge
    imposed a sentence that in total accorded with his view of what was appropriate
    in all the circumstances. Furthermore, we were told that the respondent spent
    11 months in pre-sentence custody following his guilty plea because of the
    unavailability of the court. That custody could only be credited on a 1:1
    basis. This factor may also have influenced the sentencing judges decision to
    make the sentence concurrent.

[11]

Finally, the Crown says that the sentence for
    conspiracy to traffic in cocaine and trafficking in cocaine was unfit as it was
    outside the proper range for the quantity of cocaine and level of involvement
    of the appellant.

[12]

At sentencing, the Crown asked for a sentence at the
    top end of the range which it submitted was 8-14 years. The appellant asked for
    5 years, which he stated was the low end of the range, which he argued was 5-13
    years. The cases cited by the parties include:
R. v. Battista
, 2011 ONSC 6394;
R. v. Bryan
, 2011
    ONCA 273;
R. v. Majnoon
, 2009 ONCA 876, 257
    O.A.C. 108, leave to appeal refused, [2010] S.C.C.A. No. 288;
R. v. Nero
,
    2008 ONCA 622;
R. v. Muise
, 2008 ONCA 665;
R.
    v. Bajada

(2003), 173 C.C.C. (3d) 255 (C.A.);
R.
    v. Feeney
, 2015 ONSC 3218;
R. v. Chaves
, [2013] O.J. No. 5423 (C.J.). The sentencing judge then imposed the
    five year sentence, as part of the total sentence of seven years, 69 days. This
    court was apprised of two other sentences imposed on two offenders charged in
    the same police investigation, one by the same judge, of eight years each based
    on joint submissions in
R. v. Perron
, (11
    October 2016), Ottawa, 13/30422 (S.C.) and
R. v. Gheorghevici
. Although this was not a joint submission, the trial judge referred
    to the sentence imposed in
Gheorghevici

and it is apparent he considered the parity principle when imposing
    this sentence.

[13]

We agree with the Crown that the case law supports the submission that
    eight years is toward the low-end of the accepted range for conspiracy to
    traffic in cocaine for mid-level dealers trafficking in quantities that include
    the kilogram level. While a very heavy sentence was warranted in this case, we
    cannot say that it is an error of law beyond the discretion of the trial judge
    to have imposed five years as part of a total sentence following a guilty plea
    and that is in accord with other sentences to which the parity principle
    applies.

[14]

In the result, while leave to appeal sentence is granted, the appeal is
    dismissed.

K. Feldman J.A.

K. van Rensburg J.A.

G. Pardu J.A


