



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Delchev, 2014 ONCA 448

DATE: 20140609

DOCKET: C56467

Feldman, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Nikolai Delchev

Respondent

Susan Magotiaux, for the appellant

P. Andras Schreck, for the respondent

Heard: February 18, 2014

On appeal from the sentence imposed on December 11, 2012 by
    Justice Wailan Low of the Superior Court of Justice, following conviction by a jury.

Feldman J.A.:

[1]

The respondent, Nikolai Delchev, was convicted by a jury of 16 counts of
    weapons and drug offences and received a global sentence of 42 months. The
    respondent appealed his convictions and the Crown sought leave to cross-appeal
    the sentence. The Crown was able to perfect the cross-appeal within the
    prescribed time limit, but the transcripts needed for the conviction appeal
    were not available to perfect that appeal at the same time. The case management
    judge allowed the Crown to proceed with the sentence appeal before the
    conviction appeal was perfected. The sentence appeal proceeded separately
    before this panel. The conviction appeal has yet to be perfected.

[2]

The Crown submits that the sentence is
    demonstrably unfit and asks this court to impose a sentence in the range of
    seven years. As the respondent was released on day parole in December 2013, the
    Crown submits that he must be re-incarcerated.

Facts of the Offence

[3]

The respondent was 36 years old on the date of the offence, June 17,
    2008. He lived alone in a house he owned in Scarborough. He had a job as a
    fibre optics technician. Based on information from a confidential informant,
    the police obtained a search warrant to enter and search his home where they
    found him with what the trial judge referred to as a veritable arsenal of
    weaponry plus ammunition as well some drugs and related paraphernalia.
    Following a three-week trial, he was convicted of the following offences:
    possession of cocaine for the purpose of trafficking (10.5 grams); possession
    of oxycodone for the purpose of trafficking; simple possession of marijuana and
    hashish; possession of a restricted firearm (an assault rifle) without
    authorization or registration; possession of a prohibited firearm (a pistol)
    with readily accessible ammunition capable of being discharged in the firearm,
    without authorization or registration; possession of a restricted firearm (a
    carbine rifle) without authorization or registration; two counts of possession
    of a firearm (two rifles) without authorization or registration; storing
    ammunition in a careless manner; possession of a prohibited device (a
    high-capacity magazine for the assault rifle); five counts of possession of a
    prohibited weapon (a switch blade knife, a push dagger, a butterfly knife, a
    three-point shuriken, and a Yaqua blowgun).

Reasons for Sentence

[4]

The trial judge began her reasons for sentence by noting that guns are
    a blight on civil society and that the combination of guns and drugs is a toxic
    one, and that in that context, denunciation and deterrence were the most
    significant principles of sentencing.

[5]

On the date of sentencing, this courts decisions in
R. v. Nur
, 2013 ONCA 677, 117 O.R. (3d) 401,
and
R.
    v. Smickle
, 2013 ONCA 678, 311 O.A.C. 288, striking down the three-year
    mandatory minimum sentence for certain gun possession offences had not yet been
    released. The trial judge accepted counsels request that she determine the
    appropriate sentence without reference to the mandatory minimum, and only
    consider the constitutionality of the mandatory minimum if the appropriate
    sentence was lower than that minimum.

[6]

The trial judge began by considering the respondents history. He was
    born in Bulgaria and immigrated to Canada in 1980 with his parents as refugees.
    They settled in Scarborough, where he completed high school as well as one and
    a half years of a college business programme. At the time of sentencing, he was
    41 years old and had worked as a fibre optics technician for 12 years. He had
    the support of his employer as well as family and friends. He had a dated
    criminal record consisting of two convictions in 1991: one for possession of a
    narcotic, for which he received a conditional discharge, and the other for
    possession of property obtained by crime under $1000, for which he received a
    $250 fine and 12 months probation.

[7]

The respondent testified at trial that he became a cocaine addict
    following his mothers death in 2000 and his subsequent break-up with his
    girlfriend. He further testified that the cocaine found was for his own use.
    While accepting that the respondent was a drug user, the trial judge did not
    believe he was an addict, observing that the jury rejected his contention that
    the cocaine was for his own use and convicted him of possession for the purpose
    of trafficking.

[8]

The trial judge found the respondents evidence to be disingenuous. In
    particular, the trial judge found that the reason he went every night to
    Sunnys Bar, a known drug marketplace, was because he was carrying on a small
    trafficking business for financial gain. Further evidence included the decks
    of cocaine, the supply of gloves, weighing and packaging material, and the
    significant quantities of cash found by the police in his home.

[9]

The trial judge also rejected the respondents attempt to blame a person
    named Jason Ramsay for his drug use, as well as for his possession of all of
    the weaponry found in his home, which he claimed was based on threats of harm.
    She found that his evidence on these issues had no air of reality or ring of
    truth. The evidence found by the police, including two weapons by the
    respondents bed, the spent shell casings on the floor in the basement from a
    gun not found in the house, together with a paper target, military literature,
    and a silencer and body armour, were all consistent with the firearms and
    ammunition belonging in fact to the respondent.

[10]

After
    reviewing the case law that defined the range of sentence, the trial judge
    considered the particular circumstances of the respondent for the purpose of
    weighing the relevant factors in order to determine the appropriate sentence.

[11]

Although
    the respondents father had left him alone as a child to work abroad, and he
    had suffered the trauma of losing his mother and the break-up of his
    relationship, he was an adult when he committed the offences and therefore
    responsible for his choices. The trial judge noted that although the
    combination of guns and drugs was an aggravating factor, there was no evidence that
    the respondent ever used the firearms in connection with his drug business.
    Another aggravating factor was the quantity of firearms, ammunition and other
    lethal weapons.

[12]

On
    the mitigating side, the trial judge referred to the support the respondent had
    from his father, his good employment record and the positive opinion of him
    held by his neighbours and friends. The trial judge accepted the respondents
    statement that he had stopped using cocaine. The respondent expressed some
    remorse and responsibility for his actions. The trial judge found that he had
    good potential for rehabilitation, and concluded:

[A]nd in imposing the sentence which follows, I am imposing
    concurrent sentences for the weapons and drugs offences, rather than
    consecutive sentences which would otherwise be warranted in light of the
    unrelatedness of the offences.

[13]

Taking
    into account: a) the offenders age; b) his criminal record; c) his
    circumstances; d) the nature and quantity of the guns; e) the nature and
    quantity of the ammunition; f) the nature and quantity of the other prohibited
    weapons, the trial judge found that a fit and appropriate global sentence was
    42 months plus one year concurrent for the drug offences.

Issues

[14]

The
    Crown raises two issues in the cross-appeal against sentence:

(1)     Was the sentence imposed by the trial judge so      low
    as to be demonstrably unfit?

(2)     Did the trial judge err by making the drug      sentence
    concurrent rather than consecutive to         the sentence on the weapons
    charges?

Analysis

(1)

Was the sentence imposed by the trial judge demonstrably
    unfit?

[15]

In
R. v. L.M.,
2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15, the
    Supreme Court confirmed the applicable principles from its case law that are to
    be applied on an appeal against sentence:

In its past decisions, this Court has established that
    appellate courts must show great deference in reviewing decisions of trial
    judges where appeals against sentence are concerned. An appellate court may not
    vary a sentence simply because it would have ordered a different one. The court
    must be "convinced it is not fit", that is, "that ... the
    sentence [is] clearly unreasonable" (
R. v. Shropshire
, [1995] 4
    S.C.R. 227, at para. 46, quoted in
R. v. McDonnell
, [1997] 1 S.C.R.
    948, at para. 15). This Court also made the following comment in
R. v. M.
    (C.A.)
, [1996] 1 S.C.R. 500, at para. 90:

...absent an error in principle, failure to consider a
    relevant factor, or an overemphasis of the appropriate factors, a court of
    appeal should only intervene to vary a sentence imposed at trial if the
    sentence is demonstrably unfit.

(See also
R. v. W. (G.)
, [1999] 3 S.C.R. 597, at para.
19; A. Manson,
The Law of
    Sentencing
(2001), at p. 359; and F. Dadour,
De la détermination de la peine: principes et applications
(2007), at p. 298.)

Owing to the profoundly contextual nature of the sentencing
    process, in which the trier of fact has broad discretion, the standard of
    review to be applied by an appellate court is one based on deference. The
    sentencing judge has "served on the front lines of our criminal justice
    system" and possesses unique qualifications in terms of experience and the
    ability to assess the submissions of the Crown and the offender (
M. (C.A.)
,
    at para. 91). In sum, in the case at bar, the Court of Appeal was required  for
    practical reasons, since the trier of fact was in the best position to
    determine the appropriate sentence for L.M.  to show deference to the sentence
    imposed by the trial judge.

[16]

Therefore,
    when considering a Crown appeal against sentence, a court of appeal must
    approach its task on the basis that it is to accord deference to the sentencing
    decision of the trial judge, and only consider interfering where that judge
    made an error in principle, failed to consider a relevant factor,
    overemphasized a factor or imposed a sentence that was demonstrably unfit.

[17]

The
    Crown submits that the trial judge erred by according diminished weight to a
    number of Ontario cases decided within the previous five years when statutory
    mandatory minimums were in place. The Crown argues that, regardless of
    statutory floors, those cases have established an increased range of sentence
    for gun and drug offences, reflecting the need for sentences to be significant
    in order to emphasize the goals of denunciation and general deterrence. The
    Crown points to the increase in violent crime in Toronto involving guns, and
    guns with drugs, and submits that the range of sentence has increased to meet
    this problem, regardless of new mandatory minimums.

[18]

I
    do not agree with the Crowns submission that one can ignore the effect of the
    (now-invalidated) three-year mandatory minimum sentence requirements when
    considering the range of sentence that is derived from sentences imposed based
    on those minimums. Several decisions  including many of the decisions which
    the Crown put before the trial judge  have explicitly recognized that
    mandatory minimums have the effect of creating an inflationary floor that set
    a new minimum punishment applicable to the best offender:
R. v. Morrissey
,
    [2000] 2 S.C.R. 90, at para. 75, per Arbour J., concurring;
R. v. Harutyunyan
,
    2012 ONSC 58, at para. 18, affd 2012 ONCA 637;
R. v. Gobire
, 2013
    ONSC 2073, at paras. 19-20;
R. v. Brown
, 2010 ONCA 745, 277 O.A.C.
    233, at para. 13;
R. v. Andall
, [2011] O.J. No. 3523 (S.C.), at paras.
    23-24;
R. v. Scarlett
, 2013 ONSC 562, at para. 32; and
R. v. Whyte
,
    2011 ONSC 181, at para. 18.

[19]

The
    effect of the inflationary floor is that because the best offender must
    receive the minimum sentence, which may be a higher sentence higher than the
    one that would have been given without the minimum, the sentences for more
    culpable offenders are increased as well, so that the whole range increases.
    The cases referred to above all reflect that effect. Given that the mandatory
    minimums have been ruled unconstitutional by this court, the trial judge did
    not err if she gave diminished weight to sentences imposed following the
    imposition of the mandatory minimum when determining what would be a fit
    sentence.

[20]

Having
    said that, the increase in gun violence and in gun violence associated with
    drug dealing in Toronto, requires the imposition of significant sentences in
    order to address the goals of denunciation and deterrence and to express
    societys abhorrence of this increasing, extremely serious phenomenon.

[21]

In
    my view, the trial judge fully appreciated both the effect of mandatory
    minimums on the inflationary floor in reviewing recent sentences and the
    special need for sentences that address denunciation and deterrence for guns
    and drugs offences when she considered all of the applicable case law and
    applied it in imposing the sentence she considered appropriate for the
    respondent.

[22]

The
    trial judge referred to and considered all of the cases relied on by the Crown.
    The first was
R. v. Velez-Lau
, 2011 ONSC 4805. There, a four-year
    sentence less credit for pre-sentence custody was imposed on a 24 year old
    first-time offender who was convicted of possession of a loaded revolver and a
    semi-automatic pistol with readily accessible ammunition. In that case, the guns
    were found in a storage locker.

[23]

In
R. v. Mohamed
, [2008] O.J. No. 5492 (S.C.), the two accused were
    convicted for possessing three unloaded handguns in an automobile. One accused
    had a significant record and was sentenced to nine years less credit for
    pre-sentence custody. The other accused received a sentence of two years. He
    was a 22 year old first-time offender who was employed and supporting two young
    children.

[24]

In
R. v. Nur
, 2011 ONSC 4874, 275 C.C.C. (3d) 330, a case decided while
    the mandatory minimum was still in place, the accused pled guilty to possession
    of a loaded semi-automatic handgun. He was 19 years old, had no record and had
    good rehabilitative prospects. The trial judge described the sentence as 40
    months minus 20 months for presentence custody. A more accurate description is
    a one-day sentence plus credit of 40 months for presentence custody. The trial
    judge did not have the benefit of the Court of Appeal decision in
Nur
,
    where this court struck down the mandatory minimum sentence of three years, but
    stated that without the minimum, the offence was serious enough to warrant a
    sentence of three years.

[25]

The
    next sentence referred to by the Crown was
R. v. Harutyunyan
, where
    the accused was convicted of possession of a loaded semi-automatic handgun
    which fell out of his trousers when he was being apprehended by the police for
    driving a suspected stolen car. He was also convicted of obstruction of
    justice. The 25 year old first-time offender was sentenced to four years. The
    sentence was upheld by the Court of Appeal.

[26]

The
    Crown referred the trial judge to three cases involving guns and drugs. The
    first was
R. v. Dehaney
, 2012 ONSC 3014. The accused was convicted of
    possession of three and a half grams of crack cocaine for the purpose of trafficking,
    possession of proceeds of crime of $100, possession of a loaded, prohibited
    firearm and attempting to possess a firearm knowing he was not licensed. He had
    a minor record and an unfavourable pre-sentence report. He was sentenced to
    seven years imprisonment.

[27]

The
    second case was
R. v. Andall
. The accused was 18 years old at the time
    of the offences and was a first-time adult offender. Seven firearms were seized
    from an apartment while he was present. He was convicted of: possession of
    three loaded handguns, two sawed-off shotguns, one stun gun, possession of
    ammunition for the purpose of trafficking, trafficking in crack cocaine, and a
    number of ancillary firearms offences. He received a sentence of four and a
    half years for possession of the firearms, six months consecutive for the
    ammunition for the purpose of trafficking, and one year consecutive for
    trafficking in cocaine, as well as a four and a half year concurrent sentence
    for the ancillary firearms offences, resulting in a global sentence of six
    years, less time served on a two-to-one basis.

[28]

The
    third case was a decision of this court, which the trial judge stated was of
    the greatest assistance to her. In
R. v. Wong
, 2012 ONCA 767, the
    accused was convicted of possession of a loaded firearm without authorization,
    possession of a firearm without a license, trafficking in ketamine, possession
    of ketamine, three counts of possession of a narcotic for the purpose of
    trafficking (ketamine, marijuana and cocaine), careless storage of a firearm,
    and possession of a firearm knowing that its possession was unauthorized. He
    also pled guilty to failure to comply with recognizance of bail. The defendant
    was 24 years old and a first-time offender. He received a global sentence of
    three years on the weapons and drugs offences, plus 30 days concurrent for the
    breach of recognizance. On appeal, the conviction under s. 95(1) for possession
    of a loaded firearm without authorization was set aside. The sentence was
    upheld. This court observed again, at para. 13, that:

The combination of drugs and guns is particularly concerning.
    This combination is a serious aggravating factor on sentencing.

[29]

After
    describing all of these cases, the trial judge then turned to her analysis of
    the circumstances of the respondent and the application of the case law. She
    referred specifically to the Court of Appeals statement that the combination
    of guns and drugs is a serious aggravating factor on sentencing. Another
    aggravating factor was the quantity of weaponry that the accused possessed.

[30]

She
    reviewed the respondents circumstances and their significance in detail. For
    example, the trial judge considered that the respondent had a difficult
    childhood without a mother and with a father working abroad for months at a
    time, but concluded that at his age, he was responsible for his choices. She
    rejected his evidence that he did not like guns, but observed that there was no
    evidence he used the guns in connection with his drug activities. He had
    stopped using cocaine and had the support of his father, neighbours, friends
    and employer. She concluded that he had good potential for rehabilitation.

[31]

Finally,
    she listed in short form all of the factors that she considered in coming to a
    fit and appropriate sentence on the weapons charges: the respondents age,
    criminal record and his circumstances as well as the nature and quantity of the
    guns, the ammunition and the other prohibited weapons  and imposed a global
    sentence of 42 months, together with one year for the drug offences, to be
    served concurrently.

[32]

A
    review of the reasons for sentence demonstrates that the trial judge considered
    and weighed all of the evidence, relevant factors and case-law. She was alive
    to all of the issues, including the quantity of weapons and the drug
    trafficking, as well as the applicable sentencing factors. Her sentence of 42
    months plus one year concurrent is at the low end of the range. However, it is
    a significant penitentiary sentence that addresses denunciation and general and
    specific deterrence principles. The respondent had never served a prison
    sentence before. The sentence is not manifestly unfit.

(2)

Did the trial judge err in making the drug sentences and
    weapons sentences concurrent?

[33]

The
    Crown also submits that the trial judge erred in law by making the drug
    sentences concurrent rather than consecutive to the sentences on the weapons
    charges.

[34]

The
    decision whether a sentence should be made consecutive or concurrent is a
    discretionary one. In
R. v. McDonnell
, [1997] 1 S.C.R. 948, at para.
    46, the Supreme Court confirmed that the decision whether to make sentences
    consecutive or concurrent is to be accorded the same deference as the decision
    regarding the length of sentence: see also
R. v. Gillis,
2009 ONCA
    312, 248 O.A.C. 1, at para. 9;
R. v. Houle,
2008 ONCA 287, at para. 4.
    Nor is there an absolute rule that drugs and weapons convictions must attract
    consecutive sentences in all cases:
R. v. Borecky
, 2013 BCCA 163,

298
    C.C.C. (3d) 180, at para. 25.

[35]

The
    trial judge considered this issue carefully. She concluded that the guns in
    this case were not a tool of the trade for the respondent in his drug
    trafficking business, as they were in the
Wong
case. However, in
    formulating the global sentence, she took into account the fact that guns and
    drugs are a toxic combination:
R. v. Wong
, at para. 11. Accordingly,
    she did not commit a reversible error by making the sentences concurrent rather
    than consecutive.

Conclusion

[36]

It
    is in circumstances such as these, where a higher sentence could have been
    imposed, that appellate courts must heed the strong direction of the Supreme
    Court of Canada to accord deference to trial judges sentencing decisions.

[37]

In
    my view, the sentence imposed by the trial judge was not demonstrably unfit and
    should be accorded the deference of this court. I would grant leave to appeal
    sentence but dismiss the appeal.

Released: MT June 9, 2014

K. Feldman J.A.

I agree. M. Tulloch J.A.

I agree. P. Lauwers J.A.


