Gagnon, Marcotte, Healy

Appeal from convictions. Dismissed. Application for leave to appeal the sentence. Granted. Appeal from the sentence. Allowed in part.

The appellant, a member of the Hells Angels, was convicted of drug trafficking for a criminal organization, conspiracy, drug trafficking, and possession of stolen goods. The trial judge weighed circumstantial evidence based on expert evidence, electronic eavesdropping, video recordings, and objective factual evidence. He drew various inferences and found that the only reasonable conclusion was that the appellant was guilty. He sentenced the appellant to 9 years’ imprisonment, from which he deducted 1,291 days for interim detention, including an [translation] “additional COVID credit” of 2 days for every day spent in custody, for a total of 195.5 days.

Convictions

The inference of fact that Facchino, who ran the drug trafficking network and was a prospective member of the Hells Angels, regularly gave the appellant money is reasonable, even though the search of his home did not turn up the money. The judge could also reasonably infer that the drug trafficking money was hidden somewhere in the appellant’s house. It was also reasonable for him to make inferences about the control the Hells Angels had over the territory of the city, the hierarchical relationship between Facchino and the appellant, the way the organization operated, the appellant’s suspicious mindset, which was revealed by how he placed the elastics bundling the wads of money, his interest in the collection of evidence in another criminal investigation, and his having adopted the behaviour of a person who knows he is under surveillance. These inferences could legitimately be made in the analysis of the circumstantial evidence.

Moreover, the words [translation] “seems to establish” that were used a single time in the analysis stage, although unfortunate, have no impact on the verdicts. Further, the lack of direct evidence showing that Facchino gave money to the appellant is largely compensated for by: (1) expert evidence, the main findings of which the judge accepted, including those on how the Hells Angels operate; (2) the evidence that the appellant belonged to this organization; (3) the evidence of close and continuing contact between the appellant and Facchino; (4) the evidence of Facchino’s criminal activities; and (5) the logical and rational inferences that it would not have been possible for a prospective member of the Hells Angels like Facchino to have engaged in drug trafficking in a territory in plain view of the club’s members and to the complete indifference of the appellant, himself a member of the Hells Angels. The judge’s final conclusion that the only reasonable inference is that the appellant is guilty is reasonable and therefore unassailable on appeal.

Sentence

It is important not to confuse the sentencing factors with the circumstances that allow  credit to be applied when determining the actual length of the sentence. A judge cannot assign a numerical value to the relevant factors and then mathematically add and subtract to arrive at a fit and appropriate sentence. Furthermore, the quantification of all the mitigating, aggravating, and relevant factors runs contrary to the very sprit of the sentencing process.

In this case, the [translation] “additional COVID credit” the judge granted is a deduction that applies only when the sentence is imposed, not at the stage the sentence is determined. The judge could not grant credit exceeding the ceiling in section 719(3.1) of the Criminal Code (R.S.C. 1985, c. C-46) of 1 and 1/2 days for each day spent in custody. The credit granted should therefore be set aside.

Text of the decision: http://citoyens.soquij.qc.ca