



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nadarajah, 2020 ONCA 85

DATE: 20200204

DOCKET: C65091

Doherty, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Arun Nadarajah

Appellant

Breana Vandebeek, for the appellant

Sandy Thomas, for the respondent

Heard and released orally:
    January 31, 2020

On appeal from the conviction entered on
    July 12, 2017 by Justice Katarynych of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was found in possession of 102
    grams of powder cocaine and was charged with possession for the purpose of
    trafficking, contrary to s. 5(2) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19. After the trial judge dismissed the appellants applications
    under ss. 8 and 9 of the
Canadian Charter of Rights and Freedoms
, the
    appellant conceded the case against him and was convicted.

[2]

In her reasons for sentence, the sentencing
    judge accepted that there were several mitigating factors, including the
    appellants youthfulness; his first offender status; his concession of the case
    against him; his self-generated rehabilitation; and his family support.
    However, the sentencing judge rejected other circumstances that defence counsel
    had presented as mitigating factors. Ultimately the appellant received a
    sentence of 18 months incarceration.

[3]

On his sentence appeal, the appellant submits
    that the sentencing judge erred in finding that a custodial sentence was
    necessary and failed to give sufficient, if any, weight to the following
    mitigating circumstances: his history on bail; the fact that jail was not
    necessary to deter him; the fact that he was a drug-addicted trafficker; and
    the support available to him from his peer group. It is the appellants
    position that the sentencing judge overemphasized specific deterrence and
    denunciation in light of the evidence of rehabilitation.

[4]

We are not satisfied that the sentencing judge
    erred in finding that a custodial sentence was necessary in the circumstances.
    The submissions regarding deterrence, available peer support, and the
    appellants history on bail, were specifically considered and rejected by the
    sentencing judge, as she was entitled to do. The sentencing judge also found
    that there was an insufficient evidentiary basis to conclude that drug
    addiction was a mitigating factor. That finding was also available on the
    record, especially given that the appellant did not testify on the sentencing
    hearing.

[5]

In our view, the appellant has not met his onus
    under
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, of
    establishing that the sentencing judge erred in principle; failed to consider a
    relevant factor; or erroneously considered or placed undue emphasis on an
    aggravating or mitigating factor in determining the sentence. The sentencing
    judge properly balanced the competing factors in her careful and detailed
    reasons and imposed a sentence that is within the range of fit sentences in
    these circumstances.

[6]

Leave to appeal sentence is granted, but the sentence
    appeal is dismissed.

Doherty J.A.

David Watt J.A.

C.W. Hourigan J.A.


