



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2021 ONCA 35

DATE: 20210120

DOCKET: C66990 & C66991

MacPherson, Tulloch and Lauwers
    JJ.A.

C66990

BETWEEN

Her Majesty the Queen

Respondent

and

David Brown

Appellant

C66991

AND BETWEEN

Her Majesty the Queen

Respondent

and

Daimian Johnson

Appellant

Nathan Gorham and Breana Vandebeek, for
    the appellants

Diana Lumba, for the respondent

Heard: December 18, 2020 by
    video conference

On appeal from the sentences imposed by
    Justice Michael K. McKelvey of the Superior Court of Justice on May 2, 2019.

REASONS FOR DECISION

[1]

The appellant David Brown pleaded guilty to one
    count of possession of cocaine for the purpose of trafficking contrary to s.
    5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996, c.19. The
    appellant Daimian Johnson pleaded guilty to three counts of trafficking in
    cocaine contrary to s. 5(1) of the
CDSA
.

[2]

Brown and Johnson submitted agreed statements of
    facts for the purposes of sentencing.

[3]

The agreed statements of facts stated that Brown
    obtained two kilograms of cocaine from Johnson on June 6, 2016. Brown was
    arrested on June 28, 2016 and found in possession of one kilogram of cocaine
    pressed into a brick. Police executed a search warrant at Browns residence the
    following day and found cash, cellular phones, a money counter, drug
    paraphernalia and a debt list.

[4]

Johnson sold large volumes of cocaine in May
    2016, including one kilogram to a client on May 17, 2016. On June 6, 2016,
    Johnson sold Brown two kilograms of cocaine. On June 13, 2016, Johnson sold one
    kilogram of cocaine to a different client. Like Brown, Johnson was arrested on
    June 28, 2016. Police discovered nearly $75,000 in cash and three cellular
    phones in his car.

[5]

Brown was sentenced to four years and seven
    months incarceration. Johnson was sentenced to six years and five months
    incarceration. Both men appeal their sentences.

[6]

The basis of the two appeals is the same  the
    appellants assert that the sentencing judge took no or insufficient account of
    several important mitigating factors. If the sentencing judge had taken proper account
    of these mitigating factors, the sentences should have been lower.

[7]

Before considering the specific mitigating
    factors raised by the appellants, we observe that the sentencing judge
    identified numerous mitigating factors. Both appellants pleaded guilty. Both
    appellants were arrested twice and had two bail hearings. Both appellants were
    subject to restrictive bail conditions. Both appellants chose to speak at the
    sentence hearing. They expressed genuine remorse for their engagement in criminal
    commercial drug activity and the sentencing judge believed them, saying Mr.
    Brown appeared genuinely remorseful about his conduct and As with Mr. Brown,
    I had no reason to doubt Mr. Johnsons sincerity.

[8]

Against this backdrop, we turn to the legal
    issues raised by the appellants. Importantly, we do so under the umbrella of
    the deference that an appellate court must accord to the decisions of
    sentencing judges:
R. v. Lacasse
, 2015 SCC 64, at paras. 39-44.

[9]

The appellants submit that the sentencing
    judges starting point for sentences involving possession for the purpose of
    trafficking  five to eight years  was too high. We do not accept this
    submission. This range is supported by case law:
R. v. Bryan
, 2011
    ONCA 273.

[10]

Moreover, the Crown in this case proposed a
    seven year sentence for Johnson and a five year sentence for Brown. And the
    sentencing judge recorded: The defence accepts that the sentences proposed by
    the Crown are reasonable generally.

[11]

The real issue on this appeal is the same as
    that recorded by the sentencing judge, namely the proposed sentences do not
    adequately reflect all of the mitigating circumstances which need to be taken
    into account. In this domain, the appellants make two joint submissions and
    Johnson makes a separate submission.

[12]

First, the appellants contend that the
    sentencing judge erred by giving no credit for the fact that the appellants had
    been arrested twice (the second time when new charges were laid) and went
    through a second bail hearing.

[13]

We do not accept this submission. The sentencing
    judge expressly considered this issue under the heading Mitigating Factors 
    Two Separate Arrests. He said:

I agree with the defence that having to go
    through a second arrest and bail review would have caused the defendants some
    additional anxiety and frustration. I disagree, however, with the suggestion that
    their sentences should be further discounted by six months on this account.
In my view, the proposed sentences adequately reflect
    this mitigating factor
. [Emphasis added.]

[14]

We can see no error in this analysis. The
    sentencing judge identified and considered the issue and, importantly, employed
    it as a factor supporting the sentences proposed by the Crown, which already
    reflect[ed] some very significant mitigating factors.

[15]

Second, the appellants submit that the sentencing
    judge failed to give sufficient credit for the stringent bail conditions that
    both appellants faced after their arrests and for the fact that the appellants,
    through counsel, turned in three firearms to the police.

[16]

We are not persuaded by this submission. The
    sentencing judge explicitly stated that he was going to give credit for these mitigating
    factors to reduce the sentences proposed for each of the defendants below
    those which have been proposed by the Crown. At the end of his reasons, he
    fulfilled this pledge by reducing Johnsons sentence by seven months, and
    Browns sentence by five months, below what the Crown had sought. We cannot
    quarrel with the sentencing judges decision to give credit for these two
    factors or with the quantum of the credit he chose.

[17]

Third, the appellant Johnson contends that the
    amount of credit  two months  the sentencing judge gave him for his testimony
    at the drug trial of one of his customers was insufficient.

[18]

We do not accept this submission. At the
    sentence hearing, the Crown took the position that no credit should be given
    because Johnsons testimony was not helpful to the Crown and the charges
    against the customer were dismissed. The sentencing charge carefully reviewed
    Johnsons role in his customers trial and the relevant case authorities. We cannot
    say that his allocation of two months credit for Johnsons testimony was
    unreasonable, or even parsimonious.

[19]

The appeals are dismissed.

J.C.
    MacPherson J.A.

M.
    Tulloch J.A.

P.
    Lauwers J.A.


