A. Paciocco

The defendant pleaded guilty to conspiracy to traffic in marijuana and trafficking in marijuana under 3 kilograms.

An Agreed Statement of Facts was entered that did not specify the quantity of marijuana involved in the conspiracy.

The Crown subsequently sought to lead evidence at sentencing to establish that the quantity exceeded 3 kilograms.

The court found that the Crown and defence had entered into an implicit agreement that sentencing would be based solely on the facts in the Agreed Statement of Facts.

The Crown's application to call further evidence was dismissed.

The defendant then brought a section 11(b) Charter application alleging breach of the right to be sentenced within a reasonable time.

The court found that the net sentencing delay of 10 months exceeded the 5-month presumptive ceiling established in R. v. Charley, and that no exceptional circumstances justified the delay.

The court granted a stay of proceedings as the remedy for the breach, while preserving the finding of guilt.

The Crown sought to lead evidence at a sentencing hearing to prove that the amount of marijuana the defendant conspired to traffic exceeded three kilograms, despite an agreed statement of facts that did not include this fact.

The defendant had pleaded guilty to conspiracy to traffic marijuana and trafficking in marijuana under three kilograms based on the agreed statement of facts.

The Crown, represented by different counsel at sentencing, sought to introduce additional evidence to establish the higher amount.

The court held that the Crown was not permitted to lead evidence to establish additional facts beyond those contained in the agreed statement of facts, as doing so would breach the implicit agreement between Crown and defence counsel and would be unfair to the defendant who had abandoned his right to trial and his Charter s. 11(b) application in reliance on that agreement.

The Crown brought an application for a Gardiner hearing to lead evidence of additional facts regarding the quantity of marijuana involved in a conspiracy charge, facts not admitted in the Agreed Statement of Facts to which the defendant had pleaded guilty.

The defendant opposed the application, arguing that an implicit agreement existed between the Crown and defence that no additional facts would be introduced at sentencing.

The court found that an objective agreement had been reached whereby the Crown agreed not to tender evidence of facts beyond those contained in the Agreed Statement of Facts.

The court deferred the remedy issue pending further submissions on the application of R. v. Nixon and whether the defendant wished to strike his guilty plea.