R. v. Delchev (N.), 2014 ONCA 448

• Judge: Feldman, Tulloch and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 18, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 448;(2014), 323 O.A.C. 19 (CA)

R. v. Delchev (N.) (2014), 323 O.A.C. 19 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JN.015

Her Majesty the Queen (appellant) v. Nikolai Delchev (respondent)

(C56467; 2014 ONCA 448)

Indexed As: R. v. Delchev (N.)

Ontario Court of Appeal

Feldman, Tulloch and Lauwers, JJ.A.

June 9, 2014.

Summary:

The accused was convicted by a jury of 16 counts of weapons and drug offences and received a global sentence of 42 months' imprisonment. The Crown applied for leave to appeal sentence, and if leave was granted, appealed the sentence.

The Ontario Court of Appeal granted leave to appeal and dismissed the appeal.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - Based on information from a confidential informant, the police obtained a search warrant to enter and search the accused's home where they found him with a "veritable arsenal" of weaponry plus ammunition as well as some drugs and related paraphernalia - The accused was convicted by a jury of 16 counts of weapons and drug offences - The trial judge considered (1) the accused's age (36); (2) his dated criminal record; (3) his circumstances (difficult childhood without a mother); (4) the nature and quantity of the guns; (5) the nature and quantity of the ammunition; and (6) the nature and quantity of the other prohibited weapons and concluded that a sentence of 42 months' imprisonment plus one year concurrent for the drug offences was appropriate - The Crown appealed the sentence, asserting that the trial judge erred in law by making the drug sentences concurrent rather than consecutive to the sentences on the weapons charges - The Ontario Court of Appeal dismissed the appeal - The trial judge considered this issue carefully - She concluded that the guns in this case were not a "tool of the trade" for the accused in his drug trafficking business - However, in formulating the global sentence, she took into account the fact that guns and drugs were a "toxic combination" - Accordingly, she did not commit a reversible error by making the sentences concurrent rather than consecutive - See paragraphs 33 to 35.

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See Criminal Law - Topic 5802 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5849.20

Sentencing - Considerations on imposing sentence - Use or possession of firearms - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - Based on information from a confidential informant, the police obtained a search warrant to enter and search the accused's home where they found him with a "veritable arsenal" of weaponry plus ammunition as well as some drugs and related paraphernalia - The accused was convicted by a jury of 16 counts of weapons and drug offences - The trial judge considered (1) the accused's age (36); (2) his dated criminal record; (3) his circumstances (difficult childhood without a mother); (4) the nature and quantity of the guns; (5) the nature and quantity of the ammunition; and (6) the nature and quantity of the other prohibited weapons and concluded that a sentence of 42 months' imprisonment plus one year concurrent for the drug offences was appropriate - The Crown appealed the sentence, asserting that it was demonstrably unfit - The Ontario Court of Appeal dismissed the appeal - "The trial judge considered and weighed all of the evidence, relevant factors and case-law. She was alive to all of the issues, including the quantity of weapons and the drug trafficking, as well as the applicable sentencing factors. Her sentence of 42 months plus one year concurrent is at the low end of the range. However, it is a significant penitentiary sentence that addresses denunciation and general and specific deterrence principles. The respondent had never served a prison sentence before. The sentence is not manifestly unfit." - See paragraphs 15 to 32.

Criminal Law - Topic 5871

Sentence - Possession and use or sale of weapons or ammunition - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5877.1

Sentence - Improper or careless storage of firearm or ammunition - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5880

Sentence - Possession of a drug - [See Criminal Law - Topic 5850 ].

Cases Noticed:

R. v. Nur (H.), [2011] O.T.C. Uned. 4874; 275 C.C.C.(3d) 330; 2011 ONSC 4874, revd. (2013), 311 O.A.C. 244; 117 O.R.(3d) 401; 2013 ONCA 677, refd to. [para. 5].

R. v. Smickle (L.) (2013), 311 O.A.C. 288; 2013 ONCA 678, refd to. [para. 5].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, refd to. [para. 15].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1; 2000 SCC 39, refd to. [para. 18].

R. v. Harutyunan, 2012 ONSC 58, affd. [2012] O.A.C. Uned. 508; 2012 ONCA 637, refd to. [para. 18].

R. v. Gobire, [2013] O.T.C. Uned. 3073; 2013 ONSC 3073, refd to. [para. 18].

R. v. Brown (D.G.) (2010), 277 O.A.C. 233; 2010 ONCA 745, refd to. [para. 18].

R. v. Andall, [2011] O.J. No. 3523 (Sup. Ct.), refd to. [para. 18].

R. v. Scarlett (R.), [2013] O.T.C. Uned. 562; 2013 ONSC 562, refd to. [para. 18].

R. v. Whyte (M.), [2011] O.T.C. Uned. 181; 2011 ONSC 181, refd to. [para. 18].

R. v. Velez-Lau, 2011 ONSC 4805, refd to. [para. 22].

R. v. Mohamed, [2008] O.J. No. 5492 (Sup. Ct.), refd to. [para. 23].

R. v. Dehaney (A.), [2012] O.T.C. Uned. 3014; 2012 ONSC 3014, refd to. [para. 26].

R. v. Wong (A.S.), [2012] O.A.C. Uned. 629; 2012 ONCA 767, refd to. [para. 28].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 34].

R. v. Gillis (R.P.) (2009), 248 O.A.C. 1; 2009 ONCA 312, refd to. [para. 34].

R. v. Houle (R.), [2008] O.A.C. Uned. 194; 2008 ONCA 287, refd to. [para. 34].

R. v. Borecky (T.E.), (2013), 336 B.C.A.C. 255; 574 W.A.C. 225; 2013 BCCA 163, refd to. [para. 34].

Counsel:

Susan Magotiaux, for the appellant;

P. Andras Schreck, for the respondent.

This application and appeal were heard on February 18, 2014, by Feldman, Tulloch and Lauwers, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Feldman, J.A., on June 9, 2014.