R. v. Ali (M.S.), (2010) 279 B.C.A.C. 296 (CA)

• Judge: Newbury, Chiasson and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 18, 2009
• Jurisdiction: British Columbia
• Citations: (2010), 279 B.C.A.C. 296 (CA);2010 BCCA 4

R. v. Ali (M.S.) (2010), 279 B.C.A.C. 296 (CA);

    473 W.A.C. 296

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JA.045

Regina (respondent) v. Mohammad Sayiad Ali (appellant)

(CA035817; 2010 BCCA 4)

Indexed As: R. v. Ali (M.S.)

British Columbia Court of Appeal

Newbury, Chiasson and Frankel, JJ.A.

January 7, 2010.

Summary:

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. A56; 2007 BCSC 1942, convicted Ali of trafficking and possession of cocaine for the purpose of trafficking. He was sentenced to six months' imprisonment (see [2008] B.C.T.C. Uned. 348; 2008 BCSC 657). Ali appealed from his conviction and from his sentence.

The British Columbia Court of Appeal, in a decision reported at 277 B.C.A.C. 154; 469 W.A.C. 154, dismissed the appeal from conviction.

The British Columbia Court of Appeal dismissed the sentence appeal.

Editor's Note: for a decision regarding this accused's application for judicial interim release, see (2008), 253 B.C.A.C. 167; 425 W.A.C. 167 (C.A.).

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - Seeking a conditional sentence, Ali appealed from his sentence of six months' imprisonment for trafficking and possession of cocaine for the purpose of trafficking - The British Columbia Court of Appeal dismissed the appeal - The trial judge weighed the relevant mitigating and aggravating factors - She noted that while ordinarily a term of imprisonment of nine to 12 months would have been appropriate, taking into account Ali's family obligations, his lack of a criminal record and other mitigating factors, concurrent sentences of six months on each charge were imposed - It was significant that Ali was involved in a "dial-a-dope" operation - The court agreed with the sentencing judge's conclusion that conditional sentence orders were not favoured in dial-a-dope trafficking operations - The judge also considered the fact that Ali was from Fiji and was subject to a removal order - She made no error in concluding that a period of incarceration was warranted - See paragraphs 7 to 16.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5720.3 ].

Criminal Law - Topic 5806

Sentencing - General - Co-accused - Sentence parity - Ali appealed from his sentence of six months' imprisonment for trafficking and possession of cocaine for the purpose of trafficking, asserting that his sentence was not comparable to that of his co-accused, who received a conditional sentence - The British Columbia Court of Appeal dismissed the appeal - The sentencing judge had noted that the co-accused was clearly an addict, while there was no indication that Ali was an addict or even a user - The money was found on Ali and not on the co-accused - The sentencing judge made no error in her consideration of the relative positions of Ali and his co-accused - See paragraphs 19 and 20.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Criminal Law - Topic 5720.3 ].

Criminal Law - Topic 5834.8

Sentencing - Considerations on imposing sentence - Effect on citizenship or immigration application, status, etc. - [See Criminal Law - Topic 5720.3 ].

Criminal Law - Topic 5846

Sentencing - Considerations on imposing sentence - Economic or family status of the accused - [See Criminal Law - Topic 5720.3 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - [See Criminal Law - Topic 5720.3 ].

Criminal Law - Topic 6218

Sentencing - Appeals - Variation of sentence - Evidence on appeal (incl. fresh evidence) - Ali appealed from his sentence of six months' imprisonment for trafficking and possession of cocaine for the purpose of trafficking and sought to admit fresh evidence on the appeal, consisting of a psychologist's report and two letters of reference that shed light on the effect of separation from Ali's family and on his good character - The British Columbia Court of Appeal indicated that the tendered fresh evidence did not meet the criteria set out in R. v. Lévesque (R.) (2000 S.C.C.) - There was no explanation for why the material could not have been obtained and placed before the sentencing judge - The material added very little to the information that was before the sentencing judge - See paragraphs 17 and 18.

Cases Noticed:

R. v. Proulx (J.K.D.), [2001] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 10].

R. v. Franklin (J.D.), [2001] B.C.T.C. 706; 2001 BCSC 706, refd to. [para. 11].

R. v. Rastgoei (P.) (2008), 256 B.C.A.C. 267; 431 W.A.C. 267; 2008 BCCA 242, refd to. [para. 12].

R. v. Lévesque (R.), [2000] 2 S.C.R. 487; 260 N.R. 165, refd to. [para. 17].

Counsel:

P.M. Bolton, Q.C., and A. Samarasekera, for the appellant;

R. Prior, for the respondent.

This appeal was heard on December 18, 2009, at Vancouver, British Columbia, by Newbury, Chiasson and Frankel, JJ.A., of the British Columbia Court of Appeal. On January 7, 2010, Chiasson, J.A., delivered the following written reasons for judgment for the court.