



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kizir, 2018 ONCA 781

DATE: 20181004

DOCKET: C63735

Pepall, Lauwers and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Volkan Kizir

Appellant

Ian B. Kasper, for the appellant

Narissa Somji, for the respondent

Heard: September 20, 2018

On appeal from the sentence imposed on February 17, 2017
    by Justice K. Phillips of the Superior Court of Justice.

REASONS FOR DECISION

Background

[1]

The appellant was convicted of 23 drug and weapons related offences,
    including conspiracy to traffic heroin, cocaine, and methamphetamine, dangerous
    possession of weapons, conspiracy to assault, and money laundering. He received
    a global sentence of 14 years less credit of 2,180 days for time in pre-trial
    custody. He appeals his sentence.

[2]

The appellant worked in partnership with Issa Cheikhezzein running a
    major drug dealing operation in Ottawa. Cheikhezzeins case proceeded before a
    different judge, who also imposed a global sentence of 14 years.

[3]

The appellant raises three issues on appeal. First, he maintains that the
    sentencing judge erred in failing to properly apply the principle of parity. He
    argues that he played a lesser role in the offences than Cheikhezzein did and,
    accordingly, his sentence should be reduced from 14 to 10 years. Second, he submits
    that the sentencing judge erred in determining the credit for time spent in pre-trial
    custody. The appellant claims that he should have received a greater credit for
    what he asserts were unduly harsh conditions on remand. Finally, he says that
    the trial judge erred in failing to grant him credit for the time spent on restrictive
    bail conditions.

[4]

Although we granted the appeal with respect to the restrictive bail
    conditions, we dismissed it in all other respects, with written reasons to
    follow. These are those reasons.

Parity Principle

[5]

The appellant and Cheikhezzein ran their drug dealing operation out of a
    stash house in Ottawa where they possessed narcotics, significant amounts of
    cash, handguns, ammunition and bulletproof vests. The investigation into this
    large-scale joint drug and weapons enterprise took place over a long time. The
    investigation included the use of wiretaps and surreptitious video surveillance.

[6]

Before the sentencing judge, the Crown asserted that the appellant was a
    full co-conspirator with Cheikhezzein and ought to receive a comparable sentence.
    Defence counsel argued that while the appellant did engage in a conspiracy to
    traffic in narcotics with Cheikhezzein, he was a junior member in that
    agreement and should receive a lesser sentence. In particular, the defence argued
    that it was Cheikhezzein who had the connection to Rezai, the man responsible
    for bringing the drugs to Ottawa, and thus Cheikhezzein had a higher degree of
    culpability than the appellant.

[7]

The sentencing judge rejected the defence position and gave the
    appellant the same sentence as Cheikhezzein. The appellant submits that the
    sentencing judge erred in doing so. He claims that the sentencing judge erred
    by placing excessive weight on the nature of the relationship between
    Cheikhezzein and the appellant and insufficient weight on their respective
    roles in the hierarchy, particularly given Cheikhezzeins status as a drug
    supplier, his close relationship with Rezai, and his involvement with firearm
    sales.

[8]

We disagree.

[9]

Section 718.2(b) of the
Criminal Code
provides that a sentence
    should be similar to sentences imposed on similar offenders for similar
    offences committed in similar circumstances. The parity principle is not to be
    applied in a rigid fashion; it is one of several principles applied in the
    sentencing of an offender:
R. v. Beauchamp
, 2015 ONCA 260.

[10]

The
    sentencing judge specifically addressed the parity principle. He considered the
    totality of the evidence and concluded that the two men were equals in the
    operation. It was open to the sentencing judge to come to this conclusion. Bearing
    in mind the totality of the scheme, we see no error in the trial judges
    conclusion that the fact that Cheikhezzein received the drugs from Rezai was a
    distinction without a difference. The trial judge pointed to other factors that
    showed the appellant in a potentially different but equally culpable role. For
    instance, the appellant was the person who sold the drugs, presenting himself
    as someone low down on the drug-dealing ladder in order to deceive customers,
    he was the person who actually sold heroin to an undercover officer on at least
    20 occasions, he was the one who was seen diluting drugs at the stash house,
    and he was the one captured on video wearing gloves while wiping down a firearm
    and bullets. The trial judge also had the benefit of watching hours of video
    and listening to hours of intercepts from the stash house. Having done so, the
    sentencing judge was in a very good position to come to his conclusion that the
    men were equals in the enterprise and should be sentenced accordingly.

[11]

We
    see no reason to interfere with his conclusion in that regard. The sentence of
    14 years was warranted by all of the circumstances and was fit.

Enhanced Credit

[12]

The
    appellant submits that prior to sentencing, he spent 321 days in partial or
    complete lockdown. He sought a credit of 180 days to account for the time spent
    in harsh conditions.

[13]

The
    sentencing judge agreed that the appellant should receive enhanced credit for
    the time spent in lockdown, but stated that it was not possible to calculate
    precisely the effect of the lockdowns on the appellant. To arrive at the amount
    of time to be credited, the sentencing judge applied a mathematical formula to
    a six month period of time. That formula resulted in the appellant receiving an
    additional 90 days of credit towards his sentence, over and above what he would
    have received had the typical 1.5:1 calculation been applied.

[14]

The
    respondent acknowledges that enhanced credit was available in the circumstances
    of this case, but argues that there was no error in the sentencing judges
    approach or in the amount of credit given.

[15]

We
    agree. There is no one formula or approach to determining credit for harsh
    conditions. The sentencing judge was clear that he was using a broad brush
    approach. The sentencing judge was entitled to adopt the methodology he did. Applying
    that methodology, he considered the additional 90 days of credit (above what a
    1.5:1 calculation would permit) to appropriately reflect the harsh conditions
    presented by the lockdowns. We would defer to that conclusion.

Credit for Restrictive
    Bail Conditions

[16]

Lastly,
    the Crown agreed at trial that the appellant should be given an additional credit
    of 177 days for the period of time he spent under restrictive bail conditions. Although
    the sentencing judge acknowledged the restrictive bail conditions, he did not
    address the Crown concession that 177 days of credit should be granted. Before
    this court, the Crown fairly concedes that that additional credit should be
    given. In these circumstances, 177 days credit is given to the appellant on
    account of restrictive bail conditions.

Disposition

[17]

For
    these reasons, leave to appeal sentence is granted, the appeal from sentence is
    granted in part to allow for an additional credit of 177 days for pre-trial
    custody, making for a final sentence of 14 years imprisonment less 2,357 days.

S.E.
    Pepall J.A.

P.
    Lauwers J.A.

Fairburn
    J.A.


