



COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Mac, 2016 ONCA
    379

DATE: 20160518

DOCKET: C57573

Watt, Lauwers and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Khaun Min Mac

Appellant

Kim Schofield and Melina Macchia, for the appellant, Mr.
    Mac

Anya Weiler, Geoffrey Roy and Kelvin Ramchand, for the
    respondent, the Crown

Heard: April 14, 2016

On appeal from the conviction entered by Justice Bruce A.
    Glass of the Superior Court of Justice on April 29, 2013, and from the sentence
    imposed on October 17, 2013, with reasons reported at 2013 ONSC 2523.

Lauwers J.A.:

[1]

The appellant was convicted of conspiracy to traffic two kilograms of methamphetamine.
    The evidence against the appellant was based on intercepted communications and
    observed interactions between the appellant and Mr. Quan Lao, the subject of
    police investigation. The appellant unsuccessfully challenged the wiretap
    authorization by way of a pre-trial
Garofoli
application.

[2]

The appellant appeals both conviction and sentence. With respect to his
    conviction, he argues that the trial judge erred in not permitting him to
    cross-examine the affiant and sub-affiant on the content of the affidavit that
    led to the wiretap authorization, and in failing to excise from the affidavit
    certain allegedly unfounded assertions related to importation.

[3]

With respect to his seven year sentence, the appellant argues that it should
    be varied because trial judge erred in focusing on his dated and unrelated
    criminal record and ignored his rehabilitative prospects.

[4]

The appeal is dismissed for the following reasons.

A.

Factual Background

[5]

The appellant s communications with
    Mr. Lao were intercepted in the course of a police investigation called
    Project Nexus. It was initially focused
    on several other targets under separate investigation, who had come to police
    attention through two confidential informants. They provided information  that a group of individuals were involved in the
    importation and production of methamphetamine. The police observed their
    activities through video surveillance of an apartment building they frequented.
    Through unforeseen developments explained below, Mr. Lao became a target of Project
    Nexus and police began to intercept his communications.   The police
    intercepted communications between Mr. Lao and others, including the appellant.

[6]

In the course of Project Nexus, an undercover detective posing as a drug
    dealer seeking to buy cocaine and methamphetamine arranged to purchase two
    kilograms of methamphetamine from Mr. Lao. The appellant was observed meeting
    and shaking hands with Mr. Lao shortly before Mr. Lao provided the
    undercover officer with a sample of methamphetamine. The appellant was charged
    with conspiracy to traffic two kilograms of methamphetamine; Mr. Lao was the
    co-conspirator.

[7]

The appellant, Mr. Lao, and Mr. Joseph Nestorovski, who was allegedly
    engaged in a conspiracy to traffic in cocaine with Mr. Lao, were tried together.
    Mr. Lao entered a guilty plea following pre-trial motions and was not part of
    the trial.

B.

The Chronology of the Investigation Leading to the Request for
    Authorization

(i)

October 2009

[8]

Police received information from a first confidential informant (CI)
    that a Mr. Chan was involved in large scale trafficking of drugs. That same CI led
    police to an apartment building where police learned that Mr. Chan had rented
    an apartment.

[9]

Mr. Chans apartment is located in a building which has a sophisticated
    video surveillance system. The police began to use this system to observe the
    movements of Mr. Chan and his associates.

(ii)

November 2009

[10]

Police
    observed a flurry of activity over three days at Mr. Chans apartment. A
    number of individuals, many of whom are later named as the primary targets in
    the investigation, are observed attending at Mr. Chans apartment carrying
    various bags and boxes. These include: Mr. Sethi, Mr. Suri, Mr. Tahkur,
    Mr. Pang, and later, Mr. Lao. These bags and boxes were transferred among the
    various persons attending at Mr. Chans apartment and were not left in the
    apartment for a significant period of time. The police believed that these bags
    and boxes contained controlled substances and that the targets were engaged in
    drug trafficking.

(iii)

December 2009

[11]

Police
    obtained several number recorder warrants to monitor the telephone activity of
    the primary targets. These number recorder warrants were extended until April
    2010. The police concluded that the primary targets communicated with each other
    frequently.

[12]

The police
    also obtained a general warrant permitting covert entry to Mr. Chans
    apartment. Inside, they located small amounts of ephedrine and ecstasy, a money
    counter, packaging material, and a drug testing kit.

[13]

Mr. Chan was
    arrested for impaired driving. Mr. Suri, one of the primary targets, was a
    passenger in Mr. Chans car. Mr. Chan told police he resided in British Columbia
    and did not disclose his apartment in Ontario. The police seized a phone bill that
    matched one found in Mr. Chans apartment during the polices covert entry. On
    the phone bill was what police described as a debt list consistent with
    kilogram level trafficking of cocaine.

(iv)

January-March 2010

[14]

Police
    received information from a second CI that Mr. Sethi was in possession of
    ephedrine, a precursor for making methamphetamine. The CI was unable to tell
    police the whereabouts of the ephedrine or the methamphetamine lab.

[15]

Police
    conducted physical surveillance of both Mr. Suri and Mr. Sethi. They were unable
    to uncover any evidence of illegal activity but ascertained that they
    associated with each other away from Mr. Chans apartment.

[16]

Police
    also obtained a tracking device warrant for several of the primary targets.
    Police installed one tracking device on Mr. Suris rental vehicle. The data
    from this tracking device did not provide any evidence of illegal activity.

[17]

Police
    also installed a covert camera in the hallway outside Mr. Chans apartment.
    This camera was able to confirm that Mr. Suri and Mr. Sethi visited Mr. Chan
    frequently, carrying various bags.

(v)

April 2010

[18]

Police
    conducted an unrelated undercover operation targeting Mr. Lao. Detective Thai
    Truong met Mr. Lao at a parole office and posed as a low-level dealer. Mr. Lao,
    whom the police suspected was a high level dealer, agreed to sell Detective
    Truong four ounces of cocaine. Analysis of the number recorder warrants data
    revealed that Mr. Lao had been in communication with Mr. Sethi and Mr. Suri.
    Mr. Lao was also observed attending Mr. Chans apartment in the company of Mr.
    Sethi and Mr. Suri.

[19]

Police concluded
    that Detective Truong could be used to stimulate activity within the group by
    making more low-level buys. However, given his cover story as a low-level
    dealer, they concluded that it would be unsafe to escalate his involvement in
    order to directly target the primary targets.

(vi)

May 2010

[20]

Police
    concluded they were unlikely to further penetrate what they considered to be a
    highly sophisticated drug trafficking operation using only the investigative means
    described above. Police applied for a wiretap order against the primary targets
    named in the application, supported by the affidavit of Detective Nicholas
    Ibbott dated May 18, 2010.

C.

The
Garofoli
Application

[21]

The
    appellant and his co-accused brought a pre-trial
Garofoli
application
    challenging the admission of wiretap evidence under s. 8 of the
Canadian
    Charter of Rights and Freedoms
, on the basis that the interceptions
    constituted an unreasonable search or seizure:
R. v. Garofoli
, [1990]
    2 S.C.R. 1421. They argued that the police did not lay a proper foundation to
    show investigative necessity for the wiretaps.

[22]

To assist
    in arguing the
Garofoli
application, the appellant and his co-accused moved
    for leave to cross-examine the affiant (Detective Ibbott) and the sub-affiant
    (Detective Truong) on the affidavit. This was denied, for reasons reported at
    2013 ONSC 1951.  The appellants
Garofoli
application was also
    denied.

D.

The Issues

[23]

There are four
    issues in this appeal:

1.

Did the trial judge err in refusing the appellant leave to cross-examine
    the affiant and the sub-affiant on the affidavit filed in support of the
    application for authorization?

2.

Did the trial judge err in dismissing the
Garofoli
application?

3.

Did the trial judge err in not excising references to importation from
    the affidavit?

4.

Did the trial judge err by imposing a seven year sentence?

(1)

Did the trial judge err in refusing the appellant leave to cross-examine
    the affiant and the sub-affiant on the supportive affidavit?

[24]

Section
    186(1) of the
Criminal Code
provides that an authorization to
    intercept a private communication may only be given on the following grounds:

186. (1) An authorization under this section may be given if
    the judge to whom the application is made is satisfied

(a)     that it would be in the best interests of the
    administration of justice to do so; and

(b)     that other investigative procedures have been tried
    and have failed, other investigative procedures are unlikely to succeed or the
    urgency of the matter is such that it would be impractical to carry out the
    investigation of the offence using only other investigative procedures.

[25]

The
    appellant sought leave to cross-examine the affiant and sub-affiant in order to
    explore whether the pre-conditions of s. 186(1)(b) had been met, whether other
    investigative procedures have been tried and have failed, and whether other
    investigative procedures are unlikely to succeed. The appellant argued that cross-examination
    would have assisted the trial judge in determining whether investigative necessity
    was satisfied by the affiant/sub-affiant, while also providing a factual
    foundation for any analysis, or findings made under s. 24(2) of the
Charter
.

[26]

The trial
    judge refused leave to cross-examine the affiant. The appellant asserts that he
    erred in doing so. The appellant argues that the test for granting leave to
    cross-examine was satisfied  that is, that there is a reasonable likelihood
    that cross-examination would assist the Trier of Fact in determining a material
    issue.

(a)

The Governing Principles on Leave to Cross-Examine

[27]

The
    governing principles on leave to cross-examine were canvassed by this court in
R.
    v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 39, per Watt
    J.A.:

An accused does not have an absolute right to cross-examine the
    affiant. Leave to cross-examine is required. And leave is not granted, just for
    the asking. To obtain leave to cross-examine the affiant, an accused must show
    that the proposed cross-examination will elicit testimony that tends to
    discredit the existence of a pre-condition to the issuance of the warrant, as
    for example, reasonable and probable grounds: . [citations omitted.]

[28]

In
R.
    v. Pires
;
R. Lising
, 2005 SCC 66, [2005] 3 S.C.R. 343,
    Charron J. explained, at para. 40:

[T]he
Garofoli
leave requirement is simply a means of
    weeding out unnecessary proceedings on the basis that they are unlikely to
    assist in the determination of the relevant issues. The reason that the test
    will generally leave just a narrow window for cross-examination is not because
    the test is onerous - it is because there is just a narrow basis upon which an
    authorization can be set aside. Hence, in determining whether cross-examination
    should be permitted, counsel and the reviewing judge must remain strictly
    focussed on the question to be determined on a
Garofoli
review -
    whether there is a basis upon which the authorizing judge could grant the
    order.

[29]

As this
    court recently noted in
R. v. Beauchamp
, 2015 ONCA 260, 326 C.C.C.
    (3d) 280, it is not the reviewing judges task to conduct a re-hearing and
    substitute his view for that of the authorizing judge. The reviewing judges
    task is more circumscribed. The court noted, at para. 87:

The task for the reviewing judge, as framed by
Garofoli
and subsequent authorities, is to determine whether on the supportive
    affidavit, as amplified by evidence adduced on the review, there was sufficient
    reliable evidence that might reasonably be believed on the basis of which the
    authorizing judge
could
have concluded that the probable cause
    requirement had been met.

(b)

The Trial Judges Ruling

[30]

The trial
    judge denied the motion for leave to cross-examine the affiant and the
    sub-affiant. He rejected, at para. 3, the applicants arguments that: the

affiant

did

not
lay
a

proper

foundation

for

the

authorization; the police went to an
    interception of private communications prematurely; and that the police took
    the easy road rather than conducting regular police investigatory procedures.

[31]

The trial
    judge rejected these criticisms of the investigation, noting, at para. 7:

The

only

achievement

that

cross-examination

might

accomplish would

be

to

grind

the

officers

in

cross-examination

with

questions

about

what

they

did

or

did

not

do

and

whether

they

conducted such police
    work properly. At the end of the argument, the court will continue to be back
    to the materials provided to the authorizing judge when she granted permission
    to intercept private communications. Even if cross-examination is conducted so
    that one might criticize the officers for the quality of their work, the court
    will decide whether the information provided is properly founded for the order
    given. There is no suggestion that the affiant misled the authorizing judge
    when applying for permission to intercept private communications. In other
    words, there is nothing to be gained with cross-examination.

(c)

The Principles Applied

[32]

The trial
    judge did not err in denying leave to cross-examine the affiant and
    sub-affiant. On a
Garofoli
application, leave to cross-examine must be
    understood in light of the limited scope of review of an authorizing justices
    decision to issue a warrant. As stated by the Supreme Court in
Pires; Lising
at para. 40, a reviewing court is only tasked with determining whether
    there is a basis upon which the authorizing judge could grant the order.

[33]

The trial
    judge was required to assess whether the appellants proposed cross-examination
    would tend to undermine one of the pre-conditions for issuing the authorization.

[34]

This
    assessment is by necessity highly contextual and depends upon the facts of each
    specific case. As in all cases where judges are called upon to make factual
    findings, deference is owed by reviewing courts. I would repeat this courts
    admonition in
Beauchamp
, at para. 89:

On appeal, we owe deference to the findings of fact made by the
    reviewing judge in his or her assessment of the record, as amplified on review,
    as well as to his or her disposition of the s. 8
Charter
challenge.
    Absent an error of law, a misapprehension of material evidence or a failure to
    consider relevant evidence, we should decline to interfere. [Citations
    omitted.]

[35]

The trial
    judge clearly understood the reason behind the appellants desire to
    cross-examine the affiants. However, in his opinion, cross-examination would
    not assist him in deciding the
Garofoli
application, since the affidavit
    laid out in sufficient detail the steps taken by the police and the reasons why
    the investigation took the path it did. In my view, the trial judges
    conclusion is entitled to deference and this ground of appeal must fail.

(2)

Did the trial judge err in dismissing the
Garofoli
application?

[36]

The
    appellant argues that the trial judge erred in holding that the police had established
    the investigative necessity requirement in s. 186(1)(b) of the
Criminal
    Code
. Specifically, the appellant complains that the police used a wiretap
    authorization as an investigative short-cut in place of conducting a proper
    investigation.

(a)      The Governing Principles

[37]

The general
    governing principles for a
Garofoli
application, where the underlying
    charge is conspiracy, were canvassed extensively by this court in
Beauchamp
,
    at paras. 79-105. I need not repeat them here but will draw on them briefly.

[38]

In
Beauchamp
this court elaborated on investigative necessity, and the notion of no other
    reasonable alternative method of investigation, at paras. 115-129. The court
    noted particularly, at para. 118, that a wiretap is not a technique of last
    resort [] but one of practical necessity in light of the investigative
    objectives. Further, at para 119, the court rejected the argument that investigative
    necessity cannot be established where the use of other investigative techniques
    or procedures would likely succeed in establishing the culpability of one of
    the targets of investigation. Investigative necessity is to be assessed not on
    a target-specific basis, but in relation to the investigation as a whole.
    Finally, at para 121, the court observed that [t]he nature of the activity
    under investigation is a crucial factor in the analysis and that concerted
    activity by individuals is often resistant to other investigative procedures
    that cannot reach the degree of participation and state of mind of those involved.
    See also
R. v. Spackman
, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para.
    217.

[39]

In
R.
    v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992,
the
    Supreme Court discussed investigative necessity in the context of drug
    trafficking conspiracies
. Justice LeBel observed at para. 41 that [c]atching
    the ringleaders in drug rings and conspiracies is never an easy task.  He
    added: There was, in my view, evidence in the affidavit to negate arguments
    for other investigative techniques and to make the case that wiretapping was,
    practically speaking, the only reasonable alternative, taking into account the
    nature and purpose of this particular investigation. He concluded, at para. 43:
    Here, the police had more need for wiretapping given that they were trying to
    move up the chain and catch the higher-ups in the operation. In his view:
    This rightly reinforces the investigative necessity made plain by the
    affidavit materials.

[40]

However, the
    fact that wiretap authorization might inevitably be required because of the
    nature of the activity being investigated does not excuse the police from the
    obligation to establish a firm evidentiary foundation for the authorization
    through the use of less intrusive methods of investigation. As this court noted
    in
Beauchamp
, at para. 126, there should be no rush to interception.

(b)      The Trial Judges Ruling

[41]

The trial
    judges reasons for dismissing the
Garofoli
application are set out in
    paras. 13-14:

I am satisfied that here the police did follow the required
    provisions of the
Criminal Code
by investigating as police normally
    would. Only after they found that those procedures were not succeeding with
    results and at the same [time] with information that the drug activity appeared
    to be taking place, they were able to satisfy the authorizing judge that they
    needed an additional instrument to gather more evidence. They were at an
    impasse in effect. That additional process was an order permitting them to
    intercept private communications.  Investigative necessity was made out in the
    information to obtain the authorization. Granting the authorization was in the
    best interest of the administration of justice.

Although the applicants have stated that there were other or
    additional actions that the police could have undertaken, I interpret the
    submissions to be a wish list of ideal investigative processes and results.

[42]

Noting
    that police must make a decision at some point during their investigation
    whether to apply for a warrant or not, the trial judge concluded, at para. 14, that
    there was a foundation of material upon which the authorizing judge could made
    an order permitting the intercepts.

[43]

The trial
    judge took note, at para. 15, of the appellants concession that
:
that there is evidence of drug trafficking
    activity and that although the appellant disputed it, said there was also evidence
    of importation as well.

(c)      The Application of the
    Principles

[44]

The trial
    judge rejected each of the appellants criticisms of the police investigation.
    They were as follows: that the police did not do actual physical surveillance
    of the targets; they did not conduct more searches of the stash houses and
    vehicles; that they did not fully use tracking and number recorder warrants;
    and they did not continue an undercover operation.

[45]

The trial
    judge did not err in rejecting each of these criticisms. He noted the
    appellants arguments amount to little more than a wish list of ideal
    investigative processes and results. As will be seen below, each of these
    criticisms was adequately addressed in the affiants evidence and established
    that the police had reached an investigative impasse.

(i)       The

efficacy

of

video,

as

opposed

to

live
,
surveillance

[46]

Details of
    the live and video surveillance were set out at length in the affidavit. The
    affiant concluded that physical surveillance would be insufficient to meet the
    goals of the investigation. The affiant stated, at para. 295 of the affidavit,
    that physical surveillance would not reveal when and where shipments of drugs
    were arriving in to Canada, nor would it reveal the identity of unknown parties
    taking part in the distribution of the drugs
.

(ii)      More
    covert searches of alleged "stash house" and vehicles

[47]

The police
    carried out a single covert

search

of

the

identified

stash

house that did
    not find large quantities of drugs. The

affiant
    explained, at para. 297 of the affidavit, that the video surveillance
    established the bags suspected of containing large amounts of drugs were not
    kept at the residence for long periods of time. For this reason, the police
    concluded additional searches of the stash house would not advance the investigation.

(iii)     The 
    use  of tracking devices

[48]

The police installed

one

tracking

device

in

a

rental
    vehicle
that was soon
returned

t­o

the

rental

agency.

The affiant stated, at para. 301 of the affidavit, this investigative
    technique has limited utility because it could only confirm that the targets
    associated with one another. However, the investigation had already established
    that the primary targets associated with one another, and the use of more tracking
devices could not have advanced the investigative
    goals of the project.

(iv)     Number
    recorder orders

[49]

The appellant argues that the police could have used number
    recorder warrants more extensively. The number recorder warrant did produce
    positive results, as Bird J. outlined in
R. v. Sethi et al
.
,
    2015 ONSC 684. In that related case, Bird J. dismissed a
Garofoli
application brought by the some of the primary targets. Justice
Bird held, at paras. 60-61, that the number recorders
    established that Mr. Sethi had been in regular phone contact with Mr. Chan, Mr.
    Lao, and Mr. Suri.
However, as the affiant explained at para. 298 of the
    affidavit, this method also has limitations. The result of number recorder
    warrants could only reveal with whom the targets communicated, but reveals
    nothing about the contents of their communications.

(v)      The
    efficacy of the undercover operation

[50]

The initial
    undercover operation targeting Mr. Lao was unrelated to Project Nexus. However,
    once Mr. Laos association with the primary targets became known, this
    undercover operation was folded into Project Nexus. By this time, the
    undercover officers cover story had already been established. As the affiant explained,
    at para. 187 of the affidavit, Det. Truong was not portraying himself as the
    same level of drug dealing as Lao. This is evident from the fact that the
    undercover officer only arranged to purchase four ounces of cocaine from Mr.
    Lao.

[51]

The affiant
    explained that the undercover officers undercover work would be of limited
    utility on its own. While capable of showing that Mr. Lao was involved in
    trafficking cocaine, the affiant explained that Mr. Lao did not reveal the
    identity of his supplier(s). This link was only provided by the video
    surveillance of Mr. Chans apartment. The affiant explained that without the
    ability to listen to Mr. Laos phone calls, the undercover officers
    involvement was unlikely to reveal the desired information.

[52]

The
    affiant also explained that it would be dangerous to escalate the undercover
    officers involvement. He pointed out that the primary targets were being
    investigated for large-scale manufacturing and importation of drugs. To have the
    officer attempt to escalate his involvement from a low-level cocaine dealer to
    directly involve the primary targets would raise red flags. The affiant was
    particularly concerned with the fact that one of Mr. Chans co-accused in
    a separate drug investigation had been murdered and that there had been two
    attempts on the life of Mr. Sethi.

(vi)     Conclusion

[53]

In my
    view, the trial judge correctly concluded that the police had gone as far with
    their investigation as they could without a wiretap authorization. Taken together,
    it is clear from the affiants evidence that the police had reached an investigative
    impasse.

[54]

To
    summarize, the undercover operation could not be escalated due to the risk to the
    undercover officer. Physical and video surveillance, the number recorder
    warrants, and the tracking devices were unlikely to reveal anything more than known
    associations. Lastly, any additional covert entry into Mr. Chans apartment was
    unlikely to find any large quantities of drugs since the drugs were not stored
    there for any lengthy period of time.

[55]

The
    appellant would have this court look at each individual technique in isolation
    and question why the police did pursue each to its utmost. But the appellants
    approach is flawed. The investigative necessity inquiry is contextual and must
    focus on the investigation as a whole, not examine each individual technique
    under a microscope. The police were dealing with a sophisticated criminal
    conspiracy that had proven resistant to traditional investigative techniques. Investigative
    necessity dictated that a wiretap authorization was the only realistic method by
    which the police could identify the ring leaders.

[56]

The police
    did not rush to obtain a wiretap authorization in this case. They conducted a
    thorough and extensive operation and reached an impasse. The trial judge
    assessed the application as a whole and concluded that there was a basis upon
    which the authorizing judge could issue the wiretap authorization. I see no
    basis to disturb this assessment on appeal.

(3)

Did the trial judge err by not excising information about importation from
    the affidavit?

[57]

As noted
    above, the trial judge concluded, at para. 14, that the affidavit disclosed
    evidence of importation. The appellant argues that the trial judges conclusion
    on this point is flawed since there was no evidence independent of the two CIs
    corroborating this fact. Accordingly, the appellant argues that the trial judge
    erred by not excising any reference to importation from the affidavit.

[58]

I reject
    this argument. In essence, the appellant asks this court to look at each
    individual reference to importation in isolation and decide whether on its own,
    it supports a finding that importation was taking place.

[59]

There are
    two main problems with the appellants argument. First, it ignores the fact
    that a judge must review an application for authorization in a contextual
    manner and decide whether, as a whole, there was a basis for the authorization
    to issue. Second, it ignores the fact that a reviewing judge has no
    jurisdiction to excise correct information from an affidavit:
R. v. Ebanks
,
    2009 ONCA 851, 97 O.R. (3d) 721, at para. 28.

[60]

The
    appellant readily accepts that the trial judges findings are entitled to
    deference on appeal. I agree. Given that the appellant has not argued that the
    CIs information was incorrect or false, the trial judge had no jurisdiction to
    excise that information from an affidavit supporting a wiretap authorization.
    Moreover, the trial judges assessment of whether the affidavit as a whole,
    including the information from the CIs and from the whole of the police
    investigation, disclosed evidence of importation is also entitled to deference.
    As such, I see no reason to disturb the trial judges finding that the
    affidavit disclosed evidence of importation.

(4)

Did the trial judge err by imposing a seven year sentence?

[61]

The
    appellant argues that the trial judge erred by imposing a seven year sentence.
    In support of that argument, the appellant contends that the trial judge erred
    in finding that the appellant had no prospect for rehabilitation. As evidence
    that his sentence was disproportionate and therefore unfit, the appellant also
    points to the fact that he received a sentence similar to the sentences meted
    out to his co-accused Mr. Lao and Mr. Nesorovski, even though each has a lengthier
    criminal record.

(a)      The governing principles

[62]

An
    appellate court must show deference to a trial judges sentence unless an
    accused can demonstrate that the sentence is demonstrably unfit or show that
    the trial judge committed an error in principle which had an impact on the
    sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11,
    44.

[63]

Deference is
    warranted on appeal because the sentencing process is highly contextual. As
    stated by the Supreme Court in
R. v. M.(L.)
, 2008 SCC 31, [2008] 2
    S.C.R. 163, at para. 15, [t]he 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.

(b)      The trial judges decision

[64]

The core
    of the trial judges reasons is found at para. 61 of his reasons for sentence:

I conclude that with Mr. Mac denunciation of conspiring to
    traffic a serious drug, general deterrence to the public from engaging in such
    activity and a specific sanction to Mr. Mac not to engage in such actions again
    are important. There is no rehabilitation feature at play here. He has
    experienced a jail sentence in the past. Any consideration of him caring for
    his wife as a factor to reduce his sentence is not sufficient to warrant
    sentence of less than 2 years incarceration.

[65]

The trial
    judge also noted, at para. 62, that [h]ad the conspiracy advanced to the
    actual trafficking of methamphetamine, this would have been a crime for profit.
    As a result, the trial judge imposed a sentence of seven years on the appellant.

[66]

The trial
    judge also sentenced Mr. Lao and Mr. Nestorovski for conspiracy to traffic. He
    took into consideration Mr. Laos lengthy criminal record for crimes of dishonesty,
    weapons, and drugs. He also took into consideration the fact that Mr. Lao
    pleaded guilty prior to trial. However, he concluded that specific deterrence
    must be emphasized and imposed a sentence of seven years for conspiracy to
    traffic. Mr. Nestorovski was charged with conspiring to traffic one kilogram of
    cocaine with Mr. Lao. The trial judge again emphasized specific deterrence and
    imposed a sentence of six years.

(c)      The principles applied

[67]

In my
    view, the appellants sentence is neither demonstrably unfit, nor affected by
    an error in principle that had an impact on his sentence. The trial judge
    considered the relevant mitigating and aggravating factors. He noted that the
    appellants prior custodial sentence had not deterred him from committing more crimes.
    Given the societal harm caused by drug trafficking, the trial judge did not err
    in emphasizing specific and general deterrence.

[68]

I would
    also reject the appellants argument that his sentence is disproportionate and
    therefore unfit because it is similar to those of his co-accused. It is true
    that the appellants co-accused had more substantial prior criminal records. This
    fact alone does not demonstrate that the appellants sentence was unfit. The
    trial judge considered the appellants criminal record and concluded that the
    appellant did not warrant a non-custodial sentence.

[69]

In
    addition, unlike Mr. Lao, the appellant did not plead guilty. This was a mitigating
    factor in Mr. Laos seven year sentence for conspiracy to traffic.  Mr.
    Nestorovics situation was different in that he was charged with conspiracy to
    traffic a smaller quantity of drugs that the appellant. This explains Mr.
    Nestorovics sentence of six years.

[70]

In my
    view, the trial judges reasons show that he was aware of the personal circumstances
    of each co-accused and crafted a fit and proportionate sentence for each in
    light of their respective degrees of moral culpability. I see no error in his
    reasons.

E.

Disposition

[71]

I would
    dismiss the appeal from conviction. I would grant leave to appeal, but dismiss
    the sentence appeal.

Released: May 18, 2016 DW

P.
    Lauwers J.A.

I
    agree David Watt J.A.

I
    agree B.W. Miller J.A.


