



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2021 ONCA 372

DATE: 20210602

DOCKET: C66220

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nigel Lewis

Appellant

Mark C. Halfyard, for the appellant

Sarah Shaikh and Erryl Taggart, for the respondent

Heard: April 19, 2021 by video conference

On appeal from the conviction entered on May 15, 2018 and
    the sentence imposed on June 12, 2018 by Justice Marquis S.V. Felix of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from his convictions for importation and possession
    of cocaine for the purpose of trafficking. He seeks leave to appeal his custodial
    sentence of three and a half years.

Factual overview

[2]

The following evidence was not contested at trial.

[3]

Durham Regional Police carried out a controlled delivery of an
    intercepted package containing 132 grams of cocaine hidden in packages of
    preserved fruit sent from Trinidad and Tobago via the United Kingdom. The police
    obtained a general warrant to follow the package and installed a tracking
    device that would alert police when the package was opened. The sender of the
    package was Andy Thomas and it was addressed to Maxene Alexander at Unit #9
    on a street in Oshawa.

[4]

When an undercover police officer, disguised as a Canada Post delivery
    person, arrived at the address, the appellant walked over from #10, which shared
    a driveway with #9, and asked Is that for Maxene?. The officer confirmed that
    it was. The appellant indicated that Maxene was at work and offered to take
    the package for her. The appellant told the officer that he lived at #10 and
    went inside #10 to retrieve his drivers licence. When the officer queried why
    his licence showed a different address, the appellant reiterated that he lived
    at #10. The officer asked if Maxene was the appellants girlfriend. He said
    she was. The appellant then asked the officer Its from Andrew Thomas, right?
    and signed for the package before taking it back to #10.

[5]

Less than half an hour after the package was delivered, the tracking
    device was triggered, indicating that the package had been opened. Police
    immediately battered down the front door and discovered the appellant with
    another male, Emryis Lewis, who is not related to the appellant, in front of
    the partially opened package. The individual packets of preserved fruit
    containing the cocaine had not yet been opened. Both men fled out the back door
    and were arrested a short distance away.

[6]

The owner of #10, Sarah Chapman, testified at trial that she was in a
    relationship with Emryis Lewis and that the appellant was a friend. She left
    them in charge of her apartment while she attended to a family emergency. She
    testified that the appellant did not live at #10. She provided the names of a
    mother and her daughter who lived at #9, neither of whom was Maxene Alexander.
    She described #9 as a party house, with people coming and going.

Judgment and sentence

[7]

The appellants control of the package containing the drugs having been
    conceded, the trial judge drew the inference that the appellant had specific
    knowledge that there were illegal drugs in the package from the circumstances
    surrounding the controlled delivery. Alternatively, he noted that he could
    impute knowledge of the contents to the appellant because he was in the midst
    of opening the delivered package when the police executed the search warrant.
    The trial judge concluded that the appellants guilt was the only reasonable
    inference arising out of the Crowns circumstantial case.

[8]

The trial judge sentenced the appellant to three and a half years imprisonment
    for importing the cocaine and six months concurrent for possession of the
    cocaine for the purpose of trafficking. He reduced the sentence by six months
    to account for restrictive conditions during the appellants 18 months on interim
    judicial release.

Convictions appeal

[9]

The appellant submits that the verdicts are unreasonable because the
    trial judge failed to consider other equally reasonable inferences that would
    have led to an acquittal. Those inferences, according to the appellant,
    included that he was in fact accepting a package on behalf of his girlfriend,
    whom the Crown failed to prove did not exist, and that the appellants presence
    at #10 and acceptance of the package was fortuitous given the unexpected
    departure of Ms. Chapman to deal with her family emergency.

[10]

We
    are not persuaded by these submissions.

[11]

The
    appellant takes no issue with the correctness of the legal principles that the
    trial judge applied in his consideration of all the evidence. The trial judge
    understood that the Crowns case was circumstantial and that the appellants
    guilt had to be the only reasonable inference available on the totality of the evidence.
    He also recognized that an absence of evidence could give rise to a reasonable
    doubt of the appellants guilt. In our view, the trial judges determination that
    the appellant had knowledge, control and, as a result, possession of the drugs
    was the only reasonable inference available on the evidence, and we share his
    conclusion.

[12]

The
    Crowns failure to prove that Maxene Alexander does not exist does not displace
    the reasonable inference that the appellant was accepting the package on his
    own behalf or jointly with Maxene Alexander, or, if on her behalf, with
    knowledge of its contents. Ms. Chapmans evidence was that nobody by the name
    of Maxene Alexander lived at #9, and she did not testify that the appellant,
    her friend, was in a relationship with someone named Maxene. In any event, it
    was the appellant who was waiting at the door of #10 and who immediately
    approached the undercover police officer, lying twice about his residence in
    order to secure possession of the package and asking questions that revealed
    his knowledge of both the sender and recipient of the package without the
    officer first advising him. Finally, shortly after the appellant took
    possession of the package, the police surprised the appellant and Mr. Lewis in
    the process of opening the package that the appellant suggests belonged to
    someone else. The appellant and Mr. Lewis then fled out the back door.

[13]

It
    is equally unlikely that the appellants presence at #10 was fortuitous. The
    appellant was friends with Ms. Chapman and her boyfriend, who was with the appellant
    as he opened the package. There was evidence that the package could be tracked.
    The two men had charge and control of #10 during Ms. Chapmans absence and, as
    noted above, clearly had knowledge of when and from whom the package would
    arrive. The only reasonable inference is that the appellant was present at #10
    in order to receive the package, which he did.

[14]

We
    see no error in the trial judges analysis or conclusions.

Sentence appeal

[15]

The
    appellant submits that the sentence imposed is demonstrably unfit.
    Specifically, the appellant argues that the trial judge erred by imposing a
    sentence well outside the range for smaller amounts of cocaine recommended by
    this court in
R. v. Hamilton
(2004), 241 D.L.R. (4th) 490 (Ont. C.A.).
    The appellant was convicted of importing 132 grams of cocaine. He argues,
    however, that the sentence imposed was more in keeping with sentences for
    importation in the kilogram range and inconsistent with sentences for smaller
    amounts of cocaine. The appellant submits that he has effectively served about
    eleven months and that the appropriate disposition would be time served.

[16]

We
    do not accept these submissions.

[17]

First,
    the three and a half-year sentence was within the range. Although this court in
Hamilton
indicated that the bottom end of the three to five-year range
    articulated in
R. v. Madden
(1996), 104 C.C.C. (3d) 548 (Ont. C.A.), should
    be adjusted downward when the amount of cocaine falls below one half kilogram, the
    court did not establish an upper limit for smaller amounts. The cases relied
    upon by the appellant to establish a lower sentencing range are distinguishable,
    most notably because the sentences were imposed following guilty pleas.
    Moreover, as the trial judge rightly noted, the fashioning of a fit sentence is
    not a mathematical calculation, and the weight of the drugs in issue is only
    one factor among many to be considered.

[18]

In
    any event, it is well established that a trial judge is not bound by sentencing
    ranges and is required to impose a sentence that is fit in all the
    circumstances for the individual offender:
R. v. Lacasse,
2015 SCC 64,
    [2015] 3 S.C.R. 1089, at paras. 51 and 60. That is what the trial judge did
    here. He properly balanced the applicable mitigating and aggravating factors of
    this case. He recognized that the appellant was a good person and a hard
    worker, and that he enjoyed considerable support from family and friends. He
    looked at the seriousness of the offences, the appellants dated record for
    drug trafficking, and his role at the managerial level in planning and
    executing the offences to avoid detection. While the trial judge fairly
    determined that the sentencing principles of denunciation and deterrence were
    paramount, he also took into account the appellants prospects for
    rehabilitation and paid particular regard to the principles of totality and
    restraint. Moreover, he granted six months credit for the appellants
    difficult release conditions and considered the collateral consequences of the
    sentence, including immigration consequences, even if these did not ultimately
    affect his final determination.

[19]

While
    it falls at the higher end of the range for the importation of this amount of
    cocaine in similar circumstances, the sentence imposed was fit. We see no basis
    to interfere with it.

Disposition

[20]

The
    appeal from conviction is dismissed. While leave to appeal sentence is granted,
    we dismiss the appeal.

David Watt J.A.

L.B.
    Roberts J.A.

B. Zarnett
    J.A.



