



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Buffone, 2021 ONCA 825

DATE: 20211119

DOCKET: C64424

Doherty, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Vito Buffone and Jeffrey Kompon

Respondents

Tanit Gillium, Amber Pashuk and Brian
    Puddington, for the appellant

Mark Halfyard and Colleen McKeown, for
    the respondent Vito Buffone

Frank Addario and William Thompson, for
    the respondent Jeffrey Kompon

Heard: September 15, 2021 by video conference

On appeal from the sentences imposed on September
    28, 2017, by Justice James A. Ramsay of the Superior Court of Justice.

Gillese J.A.:

I.
OVERVIEW

[1]

Vito Buffone and Jeffrey Kompon (the
    Respondents) were the leaders of a sophisticated criminal organization that oversaw
    and directed the importation and trafficking of two tonnes of cocaine into Ontario
    in a three-year period. According to the Crown, it was the largest importation
    of cocaine ever prosecuted in Ontario.

[2]

After a lengthy jury trial, the Respondents were
    convicted of: possession of cocaine for the purpose of trafficking; trafficking
    cocaine; conspiracy to import and possess cocaine for the purpose of
    trafficking; and, committing offences in association with a criminal
    organization. Mr. Kompon was also convicted of possessing proceeds of crime.

[3]

Mr. Buffone was given a global sentence of 22
    years imprisonment (less one year for pre-sentence custody and restrictive
    bail) and Mr. Kompon a global sentence of 20 years imprisonment (less 18
    months credit for pre-sentence custody and restrictive bail). The sentencing
    judge also imposed a fine in lieu of forfeiture for the seized funds that Mr.
    Kompon used to fund his defence.

[4]

The Respondents appealed their convictions. The
    Crown appealed the sentences.

[5]

Mr. Kompon also appealed against sentence,
    arguing that the sentencing judge erred by imposing a fine in lieu of
    forfeiture. In light of
R. v. Rafilovich
, 2019 SCC 51, 442 D.L.R. (4th)
    539, which was issued after the sentencing in this case, the Crown conceded this
    matter. In
Rafilovich
,
the Supreme Court concluded that,
    generally, a judge should not impose a fine in lieu of forfeiture for funds
    that have been judicially returned for the payment of reasonable legal expenses
    associated with a defendants criminal defence: at para. 74.

[6]

In separate reasons, this court dismissed the conviction
    appeals.
[1]
These reasons address the sentence appeals.

[7]

For the reasons that follow, I would allow the Crowns
    sentence appeal and sentence each of the Respondents to life imprisonment. I
    would also allow Mr. Kompons sentence appeal.

II.
BACKGROUND

[8]

Between 2011 and 2014, the Respondents headed up
    a sophisticated criminal organization that imported and distributed some two
    tonnes of cocaine into Canada. The cocaine was hidden inside large stone
    boulders, first imported from Mexico and later from Brazil. The boulders were shipped
    to a warehouse near Port Colborne, Ontario, where the cocaine was extracted. The
    Respondents organization imported all of the cocaine, some of which they sold
    for profit and some of which they passed to other criminal organizations to
    traffic. Evidence showed that the cocaine was 93 percent pure when it arrived
    in Canada.

[9]

The Respondents, along with 12 others, were
    arrested on September 22, 2014, following a three-year police investigation
    into the cocaine importation scheme. On take down day, the police executed
    search warrants at approximately 30 locations. In addition to the seizure of
    cocaine, officers seized a vast number of documents and approximately 100
    electronic devices, including laptop computers and cell phones, some of which
    were encrypted.

[10]

Some co-accused pleaded guilty. Five others settled
    the proceedings against them by admitting facts sufficient to convict them and
    offering no defence. They were sentenced based on joint submissions.

[11]

The trial against the Respondents proceeded
    before a judge and jury in the spring of 2017. It ran for approximately four
    months. The Crown called over 100 witnesses, including experts on cocaine
    trafficking, proceeds of crime, ion mobile spectrometry, and digital forensics.
    It also filed approximately 450 exhibits to prove the existence and scope of
    the multi-year drug importation and trafficking operation. This evidence
    included intercepted and seized communications, Spanish language translation of
    communications and documents, as well as accounting records documenting the
    quantities of cocaine imported, warehoused and sold, and the costs paid and
    profits earned.

[12]

After the 50-day jury trial, the Respondents
    were convicted of the various offences as set out above.

[13]

At the time of sentencing, Mr. Buffone and Mr.
    Kompon were 53 and 46 years old, respectively. Neither had a criminal record of
    significance. The Crown argued that, given the quantity of cocaine and the
    roles played by the Respondents in the criminal organization, only life
    sentences were appropriate. The defence position was that a range of 18 to 21
    years was appropriate, less credit for pre-sentence custody and restrictive
    bail.

[14]

In his reasons for sentence, the sentencing
    judge set out the following sentences imposed on six co-accused. The first five
    were the products of joint submissions and the sixth was imposed following a
    guilty plea.

i.

Raul Bulhosen: 18 years for possession of
    cocaine for the purpose of trafficking, conspiracy to import, possession of
    proceeds, and money laundering;

ii.

Borja Vilalta-Castellanos: 17 years for
    trafficking cocaine, conspiracy to import, and money laundering;

iii.

Marco Cipollone: 12.5 years for conspiracy to
    import cocaine;

iv.

John Edward Oliver: 12.5 years for trafficking
    cocaine, conspiracy to import, possession of a firearm knowing he did not have
    a licence, and possession of a firearm without a licence;
[2]

v.

Dean Brennan: 8.25 years for conspiracy to
    import and possess cocaine for the purpose of trafficking; and

vi.

Victor Lucero (who was involved at the tail end
    of the conspiracy): 3 years for conspiracy and proceeds over $5,000.
[3]

[15]

The sentencing judge also referred to the nine-year
    sentence
[4]
imposed on Guy Caputo, a co-accused who pleaded guilty early in the proceedings
    to possession for the purpose of trafficking and possession of proceeds of
    crime over $5,000.

[16]

I will refer to the six co-accused and Mr.
    Caputo collectively as the Co-accused.

[17]

The sentencing judge then made the following
    statement, For the sake of parity I think that [the] sentences I impose must
    be based on this range, depending on factors individual to each offender (the
    Statement).

[18]

I highlight the Statement because, as you will
    see below, it plays an important role in this appeal.

[19]

Next, the sentencing judge observed that there
    was a significant difference between the Respondents and the Co-accused in that
    the former were convicted of the criminal organization offence while the latter
    were not. He found that the Respondents were partners at the head of the criminal
    organization  Mr. Buffone at the apex and Mr. Kompon a bit below him  and
    that both organized the operation so that they took the least risk of being
    caught.

[20]

The sentencing judge noted the following
    mitigating factors in relation to the Respondents. Both were middle-aged family
    men without criminal records of significance. Mr. Kompon had a conviction for
    drinking and driving and Mr. Buffone was fined for possession of a narcotic in
    1986 and possession of stolen property in 1994. Mr. Buffone was pardoned for
    these matters but the pardons were revoked as a result of the convictions in
    this matter. Favourable references from family and friends were before the
    court, showing the Respondents contributions to society.

[21]

However, as the sentencing judge observed, the
    Respondents were involved in a lifestyle of deliberate criminality for over
    three years and caught only because the police had invested significant
    resources in the investigation and made courageous tactical decisions. Both Respondents
    were sophisticated businessmen, making reasonable livings through successful
    legitimate businesses. They were well able to weigh the risks involved against
    the potential benefits of the importation scheme. They gained fantastic
    amounts of money.

[22]

The sentencing judge then spoke of the great
    harm that cocaine has caused to individuals, their families, and the community.
    He referred to caselaw, noting that the quantity of cocaine imported in this
    case was much greater than the hundreds of kilos in those cases. He then imposed
    the following sentences on the Respondents:



Count

Mr. Buffones
          sentence

Mr. Kompons
          sentence



3 
          Conspiracy to import and possess cocaine for the purpose of trafficking

20 years
          incarceration

18 years
          incarceration



1 
          Possession of cocaine for the purpose of trafficking

15 years
          incarceration, concurrent

18 years
          incarceration, concurrent



2 
          Trafficking cocaine

15 years
          incarceration, concurrent

18 years
          incarceration, concurrent



4 
          Committing offences in association with a criminal organization

1-year
          incarceration, consecutive (to reflect a sentence of 2 years, reduced by 6
          months for 4 months pre-sentence custody, and further reduced by 6 months
          for restrictive bail)

6 months
          incarceration, consecutive (to reflect a sentence of 2 years, reduced by 1
          year for 8 months pre-sentence custody, and further reduced by 6 months for
          restrictive bail)



6 
          Possession of proceeds of crime (over $5,000)

N/A

4 years
          incarceration, concurrent



III.
GROUNDS OF APPEAL

[23]

The Crown submits that the sentencing judge
    erred by:

a.

imposing sentences that are demonstrably unfit and by underemphasizing
    the principles of denunciation, deterrence and of promoting a sense of
    responsibility in the offender;

b.

failing to treat as aggravating that the Respondents were the
    directing minds of a criminal organization;

c.

overemphasizing the parity principle and failing to account for the
    significant mitigation earned by the co-accused who resolved their charges
    early; and,

d.

failing to make an order for delayed parole for the Respondents.

[24]

At the oral hearing of the appeal, the Crown
    advised that it was not pursuing the fourth ground of appeal. Consequently, I
    say nothing more about it.

IV.
THE STANDARD OF REVIEW

[25]

This court must apply a deferential standard of
    review to sentencing decisions. Sentencing judges are in the best position to
    determine just and appropriate sentences and are entitled to considerable
    deference:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para.
    41. Appellate intervention is warranted in only two situations. First, where
    the sentencing judge commits an error in principle, fails to consider a
    relevant factor, or erroneously considers an aggravating or mitigating factor,
    and the error had an impact on the sentence:
Lacasse
, at para. 44.
    Second, where the sentence is demonstrably unfit:
Lacasse
,
at
    para. 51. In either situation, the appellate court may set aside the sentence
    and conduct its own analysis to determine a fit sentence in all the
    circumstances.

V.
ANALYSIS

[26]

The parity principle, as codified in s. 718.2(b)
    of the

Criminal Code
, R.S.C. 1985, c. C-46, is that similar
    offenders who commit similar offences in similar circumstances should receive
    similar sentences. The sentencing judge relied on the parity principle in
    determining the sentences he imposed on each of the Respondents. This can be
    seen by recalling the Statement, in which he stated that for the sake of
    parity he had to impose sentences on the Respondents based on the range of
    sentences given to the Co-accused. That range was from 3 to 18 years.

[27]

Although the Respondents and the Co-accused were
    involved in the same conspiracy to import cocaine, in my view, the sentencing
    judge erred in his application of the parity principle. I say this for two
    reasons.

[28]

First, most of the sentences the sentencing
    judge relied on to establish the range for determining the Respondents
    sentences were the result of joint submissions. While the sentencing judge
    referred to this matter, he failed to appreciate that the sentences imposed on these
    co-accused under the joint submissions, lost much of their value as comparators.

[29]

In
R. v. Anthony-Cook
,
2016 SCC
    43, [2016] 2 S.C.R. 204, the Supreme Court established the legal test a
    sentencing court should apply in deciding whether to depart from a joint
    submission on sentence: the court should not depart from such a joint
    submission unless the proposed sentence would bring the administration of
    justice into disrepute or is otherwise contrary to the public interest:
Anthony-Cook
,

at para. 32. In establishing this test, the Court expressly rejected the
    notion that a joint submission on sentence should be measured by determining
    whether it was fit or even demonstrably unfit:
Anthony-Cook
,

at
    paras. 46-47. Justice Moldaver, writing for the Court at para. 48 of
Anthony-Cook
,
explained why:

Further, both the fitness test and the
    appellate demonstrably unfit test suffer from a similar flaw: they are
    designed for different contexts. As such, there is an appreciable risk that the
    approaches which apply to conventional sentencing hearings or sentencing
    appeals will be conflated with the approach that must be adhered to on a joint
    submission. In conventional sentencing hearings, trial judges look at the
    circumstances of the offender and the offence, and the applicable sentencing
    principles. They are not asked to consider the critical systemic benefits that
    flow from joint submissions, namely, the ability of the justice system to
    function fairly and efficiently. Similarly, appellate courts are not bound to
    consider these systemic benefits on a conventional sentencing appeal. The
    public interest test avoids these pitfalls.

[30]

In
R. v. MacLeod
, 2018 SKCA 1, [2018] 5
    W.W.R. 743, at para. 21, the Court of Appeal for Saskatchewan stated that, because
    a sentence based on a joint submission is not directly evaluated for its
    fitness, the sentence imposed on a co-accused under a joint submission
loses
    much of its value as a comparator
when it comes to the sentencing of any
    co-accused who has not entered into a joint submission (emphasis added). I
    agree.

[31]

Consequently, by basing the sentences for the
    Respondents on those imposed on the Co-accused  the large majority of which
    had been sentenced based on joint submissions  the sentencing judge used a range
    of sentences that may or may not have been fit. In short, because the
    Co-accuseds sentences were not fit comparators, the sentencing judge erred in
    relying on them to establish the range on which to determine fit sentences for the
    Respondents.

[32]

Second, in his application of the parity
    principle, the sentencing judge failed to adhere to the proportionality
    principle.

[33]

All sentencing starts with the proportionality principle:
    sentences must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender:
R. v. Friesen
,
2020 SCC 9,

444
    D.L.R. (4th) 1,

at para. 30. The proportionality principle has long been
    central to Canadian sentencing and is now codified as the fundamental
    principle of sentencing in s. 718.1 of the
Criminal Code
:
Friesen
,
at para. 30.

[34]

Parity is an expression of proportionality and a
    consistent application of proportionality will lead to parity:
Friesen
,
    at para. 32. However, an approach that assigns the same sentence to unlike
    cases can achieve neither parity nor proportionality:
Friesen
, at
    para. 32. That is what occurred in the sentencing below.

[35]

This can be seen by comparing Mr. Kompons
    sentence with that of Mr. Bulhosen, one of the Co-accused. Mr. Bulhosen
    was sentenced to 18 years imprisonment for his role in the conspiracy to
    import cocaine. Mr. Kompon was given the same sentence for his role in the
    conspiracy  which fails to account for Mr. Kompon being a leader of the
    criminal organization that established and controlled the conspiracy and that
    he outranked Mr. Bulhosen.

[36]

Further, the sentencing judge offended the
    proportionality principle by failing to properly consider the gravity of the
    offences the Respondents committed and their blameworthiness.

[37]

In terms of the gravity of the offences, when
    imposing sentences for conspiracy to import and possess cocaine for the purpose
    of trafficking, the sentencing judge failed to take into consideration that the
    Respondents committed the offences in association with a criminal organization.
    This he was required to do by s. 718.2(a)(iv) of the
Criminal Code
. It
    was not sufficient, as the Respondents contend, that the sentencing judge
    imposed a consecutive sentence for the offence of having committed the conspiracy
    offence in association with a criminal organization. This aggravating
    circumstance was relevant to the gravity of the offence of conspiracy to import
    and had to be considered when imposing a sentence for that offence. That said,
    the totality principle may, to some extent, moderate the individual sentences
    imposed for the two offences. In any event, as I would impose life sentences
    for the conspiracy to import offences, any potential problem with double
    counting disappears.

[38]

As well, the gravity of the offences required the
    sentencing judge to adequately address the quantity of cocaine that the
    Respondents were responsible for importing into Canada. This he did not do. The
    sentencing judge observed that, in the cocaine importation caselaw he
    considered, the quantity of cocaine was in the hundreds of kilos rather than
    thousands of kilograms as in this case. In view of this significant difference
    in quantity, the sentencing judge said, 19 years is not necessarily the top
    end of the range. However, he then imposed sentences of 18 and 20 years
    respectively on Messrs. Kompon and Buffone for the cocaine importation offences.
    18 years is self-evidently less than 19 years and 20 years is but one year more.
[5]
Neither sentence adequately reflects
    the gravity of the much larger quantities of cocaine that the Respondents were
    responsible for importing.

[39]

Moreover, the sentencing judge failed to take
    into consideration that the Respondents degree of blameworthiness was much
    greater than that of the Co-accused. The Respondents were the bosses  the
    directing minds of the conspiracy. They established the cocaine importation
    operation and stood at its head. The Co-accused took their orders from the
    Respondents.

[40]

These errors on the part of the sentencing judge
    clearly had an impact on the sentences he imposed on the Respondents.
    Consequently, it falls to this court to determine fit sentences for them. In
    the circumstances, it is unnecessary to address the Crowns contention that the
    sentences are demonstrably unfit.

VI.
SENTENCES OF LIFE IMPRISONMENT ARE FIT

[41]

I recognize that the Respondents have no
    criminal records of significance and that they enjoy family and community
    support. Nonetheless, given the gravity of their offences and the degree of their
    blameworthiness, in my view, each should be sentenced to life imprisonment.

[42]

I begin by acknowledging the exceptional nature
    of imposing the maximum sentence:
R. v. Cheddesingh
, 2004 SCC 16, [2004]
    1 S.C.R. 433, at para. 1. However, as the Supreme Court of Canada stated in
R.
    v. L.M.
, 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 22: [T]he maximum
    sentence cannot be reserved for the abstract case of the worst crime committed
    in the worst circumstances.

[43]

I also acknowledge that the Crown has not identified
    a single case in Ontario where a life sentence has been imposed for the
    importation of cocaine.
[6]
A life sentence was imposed in
R. v. Murtaza
, 2013 ONSC 4239, but the
    imported drug in
Murtaza
was heroin  not cocaine. Because heroin is recognized
    as a more harmful substance than cocaine, higher sentences are typically
    imposed for offences involving it:
R. v. Sidhu
, 2009 ONCA 81, 94 O.R.
    (3d) 609, at paras. 12-14.

[44]

I further acknowledge that in
R. v. Malanca
,
    2007 ONCA 859, 88 O.R. (3d) 570, leave to appeal (conviction) refused, [2008]
    S.C.C.A. No. 71, this court set aside a life sentence for the importation of
    cocaine and imposed a sentence of 19 years imprisonment. However, the facts in
Malanca

are very different from those in the present case.

[45]

In
Malanca
,
the appellant was a
    first-time offender, aged 26 or 27, when he was convicted of conspiracy to import
    cocaine and of importing about 270 kilograms of cocaine into Ontario. In
    sentencing the appellant to life imprisonment, the sentencing judge emphasized
    two features as aggravating: the amount of cocaine imported; and, his finding that
    the appellant was the boss of the conspiracy.

[46]

This court set aside the life sentence in
Malanca

because, among other things, the sentencing judge gave little or no
    consideration to the fact that the appellant was a youthful first-time offender
    for whom the life sentence was crushing and which left little room for the
    possibility of his rehabilitation: at paras. 59-60. As well, the court found
    that it was not at all clear that the evidence supported the sentencing judges
    conclusion that the appellant was the boss of the conspiracy:
Malanca
,
    at para. 61.

[47]

It is significant that this court stated, at
    para. 57 of
Malanca
, that while there was no Ontario authority
    imposing a life sentence for the importation of cocaine, a case may cry out
    for such a sentence. This is such a case.

[48]

Unlike
Malanca
,
in which 270
    kilograms of cocaine were imported into Canada, in the present case, the
    Respondents oversaw an importation scheme that resulted in some 2,000 kilograms
    of cocaine being imported into Ontario over a three-year period.

[49]

Sentencing for importation of this quantity of
    cocaine is unprecedented in Ontario. Before this case, the largest conviction
    for cocaine importation into Ontario was in
R. v. Frost
,
2011
    ONSC 6448.
Frost

involved an uncontested trial on an agreed
    statement of facts involving 1,360 kilograms of cocaine. The accused was sentenced
    to 16.5 years imprisonment. His co-conspirator, who pleaded guilty prior to
    his preliminary hearing, was sentenced to 16 years imprisonment based on a
    joint submission. Neither accused in
Frost

was alleged to be
    part of a criminal organization, it was a one-time importation conspiracy, and
    the accused was a first-time offender (his co-conspirator had one prior
    offence).

[50]

The differences between
Frost

and
    the present case are readily apparent. In
Frost
, unlike this case, the
    sentence followed an uncontested trial. In the case of the co-conspirator, the
    sentence was the product of a joint submission following a guilty plea. The amount
    of cocaine was significantly less (1,360 kilograms rather than 2,000 kilograms)
    and there was a single act of importation versus the 47 shipments of boulders
    as indicated by Canada Border Services Agency records in this case. Further,
    and importantly, neither offender in
Frost

was alleged to be part
    of a criminal organization.

[51]

The Respondents also differ materially from the offender
    in
Malanca
. They are not youthful first offenders. Each is a middle-aged,
    sophisticated businessman who enjoyed a good life running a successful,
    legitimate business. They committed the offences purely for greed, without any
    concern for the harm that would be visited on the public in Ontario by the
    importation of such large amounts of cocaine. When serious crimes are
    well-thought out and motivated entirely by greed, the objectives of specific
    and general deterrence must move to the forefront.

[52]

And, significantly, the Respondents were indisputably
    the bosses of the importation conspiracy. On the findings of the sentencing
    judge, the Respondents were the leaders of the criminal organization that oversaw
    and directed the importation and distribution of staggering amounts of cocaine in
    Ontario over a three-year period. They stood at the head of the sophisticated
    criminal organization which: had established trade routes and three large, remote
    commercial warehouses; used secure lines of communication and a fleet of
    company vehicles; employed meticulous record-keeping; and, drew from a
    reservoir of shell companies, false identities, and fraudulent documents to
    lend legitimacy to their operations.

[53]

The Respondents argue that there is little
    practical difference between sentences of life imprisonment and the sentences
    imposed by the sentencing judge because of the points at which the Respondents
    will become eligible for parole. Under the sentences as imposed, the
    Respondents will be eligible for full parole once they have served one-third of
    their sentences  that is, approximately seven years for Mr. Buffone and a
    little over six years for Mr. Kompon. If life sentences are imposed, Mr.
    Buffone and Mr. Kompon will each be eligible for full parole after approximately
    seven years, pursuant to s. 120(2) of the
Corrections and Conditional
    Release Act
, S.C. 1992, c. 20.

[54]

However, as the Respondents rightly acknowledge
    in their factum, the key difference between the sentences imposed and life
    imprisonment is that a person serving a life sentence will always be subject to
    the correctional authorities. An offender who is released on parole continues
    to serve their imposed sentence until its expiry, and during this time, remains
    subject to the conditions of their parole or statutory release:
Corrections
    and Conditional Release Act
, S.C. 1992, c. 20, ss. 128(1)-(2). Therefore,
    under sentences of life imprisonment, the Respondents will remain subject to
    supervision for the remainder of their lives, including upon release from prison.

[55]

In this regard, I would simply echo the words of
    the Supreme Court at para. 62 of
R. v. M. (C.A.)
,
[1996] 1
    S.C.R. 500. Even though the conditions of incarceration are subject to change
    through a grant of parole, if life sentences are imposed, the Respondents would
    remain under the strict control of the parole system and their liberty would be
    significantly curtailed for the full duration of those sentences. Thus, the deterrent
    and denunciatory purposes which animated the life sentences remain in force and
    the goal of specific deterrence is still advanced because they would remain
    supervised to the extent and degree necessary to prevent possible further crime,
    and since they would remain under the shadow of re-incarceration should they
    commit another crime. As well, the goal of denunciation would continue to
    operate because the Respondents would still carry the societal stigma of being
    convicted offenders serving criminal sentences.

[56]

Sentencing continues to be dictated by the fundamental
    principle of proportionality  the sentence must be proportionate to the
    gravity of the offence and the degree of responsibility of the offender:
L.M.
,
    at para. 22. The sheer quantity of cocaine imported, in conjunction with the
    Respondents roles and positions in the sophisticated criminal organization
    that masterminded the importation and trafficking of the cocaine, cries out for
    the maximum sentence of life imprisonment. A life sentence is proportionate to
    the gravity of the offences that the Respondents committed and the degree of
    their responsibility. Life sentences are also necessary to adequately address
    the principles of denunciation and deterrence, to promote a sense of responsibility
    in the Respondents, and to convey the clear message to them, and others, that
    the cost of doing business of this sort is extremely high.

DISPOSITION

[57]

For these reasons, I would grant the Crown leave
    to appeal the sentences and allow the appeals. I would: (i) substitute a
    sentence of life imprisonment on each of the Respondents for count 3,
    conspiracy to import and possess cocaine for the purpose of trafficking; (ii) leave
    unchanged the sentences imposed on counts 1 and 2; and, (iii) leave unchanged
    the sentence on count 6 (Mr. Kompon only).

[58]

The sentencing judge made the sentences imposed
    on count 4 (committing an offence in association with a criminal organization)
    consecutive to the sentences imposed on count 3 (conspiracy to import and possess
    cocaine for the purpose of trafficking). He was required to make the sentences
    on count 4 consecutive by s. 467.14 of the
Criminal Code
.

[59]

The parties acknowledge that the sentences on
    count 4 cannot be made consecutive to life sentences imposed on count 3: see
R.
    v. Sinclair

(1972), 6 C.C.C. (2d) 523 (Ont. C.A.), 172 CanLII 1297 and
R. v. Cadeddu

(1980), 57 C.C.C. (2d) 264 (Ont. C.A.), 1980
    CanLII 2968. However, in light of the express language in s. 467.14, in my
    view, the sentences imposed on count 4 cannot be made concurrent to the life sentences
    on count 3.

[60]

Accordingly, I would not alter the sentences
    imposed on count 4 by the sentencing judge. I would, however, stay the
    imposition of those sentences to avoid the impossibility of imposing a sentence
    to be served consecutively to a life sentence. Staying the imposition of the
    sentences on count 4 would not affect the total sentences imposed nor would it compromise
    the position or role of the parole board, should an application for parole ever
    be made.

[61]

I would also grant Mr. Kompon leave to appeal
    sentence and grant his appeal, on the consent of the Crown, and set aside the
    fine imposed in lieu of forfeiture for seized property used to pay Mr. Kompons
    reasonable legal fees for his defence.

Released: November 19, 2021 D.D.

E.E. Gillese
    J.A.

I agree. Doherty J.A.

I agree. Grant Huscroft J.A.





[1]

R. v. Buffone
, 2021
    ONCA 676.



[2]
In the reasons for sentence, the sentencing judge states that Mr.
    Oliver received a 12-year sentence. However, based on the indictment and the
    reasons for sentence given in respect of Mr. Oliver, it appears that he was
    sentenced to 12.5 years imprisonment
.



[3]
This statement is based on the sentencing judges reasons. However,
    the record calls into question the accuracy of both the offences of which the
    sentencing judge said Mr. Lucero had been convicted and the sentence(s)
    imposed. Neither matter is significant for the purposes of this appeal.



[4]
This appears to be an approximate figure of Mr. Caputos sentence.
    Mr. Caputo was sentenced to 8 years and 5 days, with credit for pre-sentence
    custody of 240 days, for a total sentence of 8 years and 245 days.



[5]
The comparison is between the sentences imposed in the caselaw that
    the sentencing judge considered for large scale cocaine importation with those
    imposed on the Respondents for such offences. For that reason, I have not
    included the additional two-year sentences imposed on the Respondents for
    having committed the offences in association with a criminal organization.



[6]
The courts attention was drawn to
R. c. Fievet
(1997), 191 N.B.R. (2d) 185
    (Prov. Ct.), in which a New Brunswick provincial court imposed a life sentence for
    the importation of 5,400 kilograms of cocaine.


