Court of Appeal for Ontario
Before: Hoy, MacPherson and Tulloch JJ.A.
Between
Her Majesty the Queen
Respondent
and
Brandon Cudmore
Appellant
Counsel:
Brandon Cudmore, acting in person
Lindsay Daviau, appearing as duty counsel
Jessica Smith Joy, for the respondent
Heard: June 3, 2020 by Videoconference
On appeal from the conviction entered on March 14, 2017 by Justice Michael P. O’Dea of the Ontario Court of Justice, and from the sentence imposed on June 7, 2017.
REASONS FOR DECISION
1The appellant pled guilty to five charges: robbery, possession of a firearm contrary to a prohibition order, use of a firearm while committing an offence, failure to comply with a probation order, and failure to comply with an undertaking, contrary to ss. 344(1)(a.1), 117.01(1), 85(1)(a), 733.1(1), and 145(3) of the Criminal Code, R.S.C. 1985, c. C-46.
2On the basis of a joint submission, he was sentenced to five years’ imprisonment for the robbery, one year concurrent for possession contrary to a prohibition order, one year consecutive for use of a firearm, and six months concurrent for both breaches. He thus received a global sentence of six years’ imprisonment, less eight months’ credit for presentence custody. A victim fine surcharge was also imposed.
3On appeal, the appellant raises two issues: 1) the s. 85(1)(a) conviction for possession of a firearm while committing an offence should be quashed; and 2) the victim fine surcharge should also be quashed per R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599. At the outset of her submissions on behalf of the appellant, duty counsel noted that the appellant is abandoning his argument, raised in his notice of appeal, that he received ineffective assistance from trial counsel.
4On the first issue, the appellant submits that the trial judge erred in imposing a sentence of one year, to be served consecutively, for use of a firearm while committing an offence. As an essential element of the robbery for which the appellant was convicted is the use of a firearm, the s. 85(1)(a) conviction is redundant and should be vacated. The current sentence of five years’ imprisonment for robbery is fit and the sentences for the other offences should be served concurrently as determined by the trial judge. There is no indication in the sentencing submissions that, if the s. 85(1)(a) conviction is vacated, a global sentence of six years’ imprisonment would be fit.
5We agree with the submissions of the appellant. Section 85(1) of the Criminal Code reads:
Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,
(a) while committing an indictable offence, other than an offence under section … 344(robbery).
6In reading this section, it is clear that where an accused is convicted of an offence under s. 344, s. 85(1) is not applicable, as the use of a firearm is already an essential element under s. 344. As such, this ground of appeal is allowed and the conviction for the s. 85(1)(a) offence is quashed.
7We also agree that, with the elimination of the s. 85(1)(a) conviction, the accompanying sentence of one year consecutive must also be vacated. Accordingly, the sentence appeal with respect to the use of a firearm charge is allowed. The sentence is hereby varied for a total sentence of five years’ imprisonment, less eight months’ credit for presentence custody.
8On consent, we would also allow the sentence appeal with respect to the victim fine surcharge. The victim fine surcharge is hereby set aside pursuant to Boudreault and R. v. Stockton, 2019 ONCA 300.
9Finally, we take note that the appellant, Mr. Cudmore, apologized for his actions and expressed a desire to change his life. He stated that he has been involved in programming, is taking medication, and is seeing counselors. He claims that he is no longer the person who he was when he committed the relevant offences. We wish him luck on his way to rehabilitation.
“Alexandra Hoy J.A.”
“J.C. MacPherson J.A.”
“M. Tulloch J.A.”