COURT OF APPEAL FOR ONTARIO

DATE: 20031215 DOCKET: C39399

McMURTRY C.J.O., LASKIN and ROSENBERG JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

DANIEL TALLON Appellant

Robert F. Goddard for the appellant Mary-Ellen Hurman for the respondent

Heard: November 25, 2003 (Kingston)

On appeal from sentence imposed by Justice Ormston of the Ontario Court of Justice on December 1, 2000.

ROSENBERG J.A.:

[1] This appeal from sentence concerns the weight that should be given to a joint submission where it is alleged that the process leading to the joint submission was unfair. On December 1, 2000, the appellant pleaded guilty before Ormston J. in the special Mental Health Court at Old City Hall courthouse in Toronto. In accordance with a joint submission, Ormston J. sentenced the appellant to a total of eight years imprisonment. With the assistance of the Correctional Law Project of the Faculty of Law Queen’s University and Mr. Goddard, the appellant appeals against that sentence.

THE FACTS

[2] The appellant pleaded guilty to a total of twenty charges. The most serious were eleven counts of robbery. But, the appellant also pleaded guilty to four weapons offences, including pointing a firearm and using a firearm to commit an indictable offence. The following is a very brief synopsis of the most serious offences. Between May 12 and June 2, 2000, the appellant committed nine bank robberies. In some cases, the appellant was accompanied by other perpetrators. In some cases, the appellant threatened to shoot the bank teller or made gestures pointing to a gun in his backpack or waistband. The robberies involved some planning since there was always an accomplice waiting outside in a car or taxicab to ensure that the perpetrators could get away. During this same time period the appellant and his confederates robbed two convenience stores while armed with either a gun or a knife.

[3] On June 5, 2000, Detective Constable Bishop and other officers arrested the appellant. In the course of the arrest, the appellant pointed an inoperable air pistol at D.C. Bishop. A struggle ensued and the appellant was eventually arrested. The appellant later told the police that he was hoping to be shot by the arresting officers. The appellant also told the police that he had used the inoperable air pistol during the robberies.

THE PROCEEDINGS

[4] On November 10, 2000, Ormston J. conducted a judicial pre-trial. At that time, Crown counsel said it would be seeking a sentence of eight years. Ormston J. indicated that he thought a sentence of four to six years would be appropriate. The plea and sentencing were scheduled to take place before Ormston J. on December 1, 2000.

[5] On December 1, 2000, a different Crown counsel represented the prosecution. He stated that the Crown would be seeking a sentence of twelve years imprisonment and asked that a pre-sentence report be obtained. The trial judge stated that he would have to give serious consideration to Crown counsel’s new position and there would be a delay of perhaps a week while a pre-sentence report was obtained. All this was explained to the appellant who insisted on proceeding and pleading guilty. The trial judge conducted a very thorough pre-plea examination to ensure that the appellant understood the Crown’s new submission. The trial judge also made it clear that he was not bound by those submissions or his earlier expression of opinion at the judicial pre-trial.

[6] After Crown counsel read out the facts of each offence, the trial judge asked the appellant to personally acknowledge the accuracy of the facts. The appellant did so. Only then did the trial judge enter a finding of guilt on the various charges.

[7] After the facts were completed, Crown counsel asked for a pre-sentence report. He based the request on the appellant’s age (he was only 19), the serious nature of the offences and the appellant’s “demeanour” in the prisoner’s box. Defence counsel told the court that his instructions were that the appellant wanted to be sentenced immediately because he did not want to be returned to the East Detention Centre.

[8] The trial judge indicated that he would not accede to the defence request. He was concerned about the appellant’s age and the prospect of sentencing him to penitentiary for twelve years. As he said, he wanted to be sure he was “doing the right thing”. As a compromise, the trial judge said he would stand the case down to see if the probation office could find earlier reports that could be put before the court. Defence counsel also pointed out that the appellant’s grandmother was in court and could provide some assistance. The trial judge adjourned the proceedings to 2:00 p.m.

[9] When the proceedings resumed, the trial judge indicated that he had been provided with two earlier reports, including a pre-parole report that was only a few months old and a detailed psychiatric report from two and one-half years earlier. The trial judge was still concerned that he did not have the most recent material and seemed to be about to adjourn the hearing to the following Monday (December 1, 2000 was a Friday). At that point, the appellant indicated that he wished to speak to his lawyer. After that discussion, counsel indicated that he had been instructed to agree to a joint submission that had apparently been offered to the appellant during the break.

[10] The trial judge once again took pains to ensure that the appellant understood the effect of the joint submission and that he was not bound by it. The appellant personally stated that he understood. The joint submission was then placed before the trial judge by Crown counsel. In short, the parties had agreed to a sentence of eight years on top of six months of pre-trial custody for an effective sentence of nine years. Defence counsel made submissions and pointed out the appellant’s psychiatric history, that he had not been cooperating with any kind of treatment and was taking illicit drugs while committing the offences to which he pleaded guilty. He also indicated that the appellant was pleading guilty to some offences that in counsel’s view the Crown would not have been able to prove. This demonstrated his co-operation and remorse.

THE APPELLANT

[11] The appellant has a criminal and youth record going back to 1996. Previously, however, he had been involved only in property offences. The offences involved in this appeal were his first offences of robbery or involving use of weapons. The appellant suffers from Attention Deficit Disorder with Hyperactivity. He has limited education and employment. He tends to resist treatment and the view of the probation officers was that the appellant requires treatment in a structured setting. There is some suggestion in the material that he may also suffer from an underlying psychosis.

ANALYSIS

[12] The appellant submits that he should not be held to the joint submission because it came in response to an “eleventh hour” change in position by Crown counsel. He submits that to permit the Crown to change its position in this way undermines the pre-trial conference system in which the appellant had participated in good faith.

[13] I am unable to accept this submission on the facts of this case. There is no transcript of the pre-trial hearing. However, it is clear that the hearing did not produce a joint submission. The positions at the end of the pre-trial were summed up by defence counsel’s submission to the trial judge on December 1, before Crown counsel indicated his new position:

There was some talk of resolution at that point, Your Honour. The Crown took the position then, and is taking a position now, of eight years. And, Your Honour took the view of four to six, in the range of four to six years [emphasis added].

[14] Thus, this is not a case where the Crown resiled from a joint submission or any other agreement reached at the pre-trial hearing. Therefore, the very strong recommendations in The Report of the Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions: (Toronto, 1993), chaired by G. Arthur Martin, that Crown counsel should only repudiate a resolution agreement in very rare circumstances had no application. This also is not a case where the accused pleaded guilty and then learned for the first time that a premise for his guilty plea (the Crown’s position on sentence) was erroneous. It was made very clear to the appellant, before he entered the pleas of guilty, that Crown counsel had changed the Crown’s position.

[15] That said, I think Crown counsel ought to urge a lengthier sentence than that suggested in the judicial pre-trial only in special circumstances. I do not think it helpful to try and set out what those circumstances might be. This is first and foremost a matter of judgment for Crown counsel. Sometimes, Crown counsel will make clear at the pre-trial that the Crown’s position is dependent on certain events, such as a positive pre-sentence report. It is also implicit that Crown counsel’s position is based upon the facts as he or she understands them to be at the time.

[16] I do not find it surprising that the more experienced Crown counsel who assumed carriage of this case took a different view of the appropriate sentence. These offences were extremely serious, involving armed robberies of banks and the pointing of a weapon at a police officer. Moreover, I reiterate that this was not a case where the Crown resiled from a joint submission. Very different considerations would apply in that circumstance.

[17] The trial judge conducted this sentence hearing with scrupulous care and fairness. He was well aware that he was dealing with a vulnerable young man. He did what he could to ensure that he had an adequate understanding of the appellant and his background. There was not then and is not now any suggestion that the appellant is not competent to make decisions about pleading guilty and give instructions to counsel about his position on sentencing. At every stage of the unusual proceeding, the trial judge was at pains to ensure that the appellant understood what was happening and the consequences of his decisions.

[18] The trial judge gave very careful reasons for sentence. He did not simply adopt the joint submission, he explained why he was prepared to impose sentence in accordance with that submission. I have no doubt that if the trial judge thought that there was any unfairness in the way the case was proceeding he would have halted the proceedings at once.

[19] In my view, the joint submission was not unfair to the appellant. Given the serious nature of these offences he could well have been facing a much lengthier sentence. His decision to agree to the offer made by Crown counsel and join in the submission of eight years imprisonment was an entirely rational one. Even a youthful offender who commits these types of offences is liable to a very long penitentiary sentence. Multiple armed robberies of banks ordinarily attract much longer sentences. There was also the very serious aggravating factor in this case that the appellant pointed a firearm at the arresting officer. The joint submission in this case was near the very bottom of the appropriate range and could be justified only because of the appellant’s youth and mental health problems. Finally, I note that the sentence actually imposed was consistent within the position initially suggested by Crown counsel at the pre-trial hearing.

[20] This appeal was argued before the court as an inmate appeal in Kingston. Thus, we had the opportunity to observe Mr. Tallon. There is no question that he faces significant challenges in the remaining years of his sentence and one cannot help but be concerned about his ability to cope with the penitentiary conditions. However, without some significant treatment, I am concerned that the appellant poses a risk to the community. I can do no better than echo the words of the trial judge:

I hope that you can get the help that you need [in the penitentiary], sir, and I hope that indeed you come through with your promises that you won’t be back again. You will still be a fairly young man when you come out of prison, and you will have your life ahead of you, so good luck.

[21] Accordingly, while I would grant leave to appeal sentence, I would dismiss the appeal. I wish to thank the Correctional Law Project and Mr. Goddard for their assistance in this difficult matter.

Signed: “M. Rosenberg J.A.”

“I agree R. Roy McMurtry C.J.O.”

“I agree John Laskin J.A.”

RELEASED: DECEMBER 15, 2003