Court of Appeal for Ontario

Date: 2025-04-11
Docket: COA-24-CR-0787
Coram: MacPherson, Sossin and Monahan JJ.A.

Between

His Majesty the King
Respondent

and

David Bynoe
Appellant

Appearances:
David Bynoe, acting in person
Erin Dann, appearing as duty counsel
Nicholas Hay, for the respondent

Heard: April 7, 2025

On appeal from the sentence imposed by Justice John F. Adamson of the Ontario Court of Justice on June 19, 2024.

Reasons for Decision

Background

1Mr. Bynoe, the appellant, was arrested with a satchel that contained a loaded handgun and small quantities of methamphetamine and fentanyl and charged with possession of a loaded firearm (contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46), possession of a prohibited firearm knowingly not being holder of license (s. 92(1)), occupying a motor vehicle with firearm (s. 94(1)), and carrying a concealed weapon (s. 90(1)). While on bail for these offences, the appellant punched his grandmother and threatened to kill her.

2On March 1, 2024, the appellant was convicted of the original firearm offences and pled guilty to assault (s. 266) and uttering a threat to cause death (s. 264.1(1)(a)) at the end of the trial. He was sentenced for all of the offences together.

3On June 19, 2024, the appellant was sentenced to 900 days, reduced by 287 days of pre-trial custody at a rate of 1.5 to 1 (431 days) for the firearms offences (469 days remaining). For the assault and uttering threats offences, the sentencing judge sentenced the appellant to 30 days concurrent to each other but consecutive to the 469 days for a total of 499 days.

4The appellant has served much of his sentence, and he advises that he will be eligible for statutory release on May 18, 2025.

5The appellant appeals both his conviction and sentence. This appeal relates only to the appellant’s sentence. The appellant’s conviction appeal will be heard separately.

6At the outset of the hearing, we granted the appellant’s request for an extension of time to appeal his sentence, on consent, and granted leave to the appellant to appeal the aspects of his conviction involving summary conviction offences, pursuant to s. 675(1.1) of the Criminal Code.

Grounds of Appeal

7The appellant raises the following three grounds of appeal:

1. First, the appellant argues that the trial judge erred in relying on lack of acceptance of responsibility as an aggravating factor in his sentencing, contrary to the principle set out in R. v. Reeve, 2020 ONCA 381, 151 O.R. (3d) 65;
2. Second, the appellant argues that the trial judge failed to provide the appellant with an opportunity to speak before sentence was pronounced, contrary to s. 726 of the Criminal Code; and
3. Third, the appellant argues that the sentence of 30 days imprisonment, imposed by the trial judge for the simple assault and uttering threats, was unreasonable.

8Overall, the appellant seeks a reduction in his sentence of 60 days.

9We are not persuaded by these arguments.

Analysis

1. Acceptance of Responsibility as an Aggravating Factor

10First, the trial judge’s reference to the appellant’s lack of insight into and failure to take responsibility for his offences is set out in the context of his response to the appellant’s argument for a conditional sentence. The trial judge concluded:

But to impose a conditional sentence, I must be satisfied of a few things. One, that there is no minimum. Well, [the appellant] passes that threshold. Secondly, that a penitentiary sentence is not required. I am having trouble with that. Third, that [the appellant] does not present a danger to society. With respect to that factor, I cannot be satisfied that he does not present a danger to society. He committed offences while he was on bail, and he shows a fairly dramatic lack of insight into his behaviour. [Emphasis added.]

11The appellant relies on Reeve, for the proposition that a lack of remorse cannot be treated as an aggravating factor because to do so would come very close to punishing the offender for making full answer and defence. However, as this court made clear in R. v. Walker, 2021 ONCA 863, at para. 4, in the context of a conditional sentence analysis, which includes a focus on future dangerousness, it is open to the trial judge to consider that the appellant did not appear to understand the seriousness of the offences. In our view, this is precisely what occurred in this case. The trial judge made no reference to remorse, but did refer, appropriately in our view, to the appellant’s failure to show insight into and take responsibility for his actions, as he explained why he concluded that a conditional sentence was not sufficient in the appellant’s circumstances.

12We therefore reject this ground of appeal.

2. Opportunity to Speak Before Sentencing

13Second, the transcript of the sentencing decision makes clear that the appellant was not offered an opportunity to address the court prior to the imposition of sentence.

14The Crown concedes that the trial judge erred in failing to permit the appellant an opportunity to speak before pronouncing sentence pursuant to s. 726 of the Criminal Code. However, the Crown argues there is no basis to conclude the error was anything other than an inadvertent oversight. Additionally, the Crown observes that the appellant was represented during the sentencing and counsel for the appellant did not advise the trial judge that the appellant intended to speak. Finally, the Crown argues that the trial judge’s error had no impact on the sentence imposed on the appellant.

15According to the appellant, he had a note with written submissions that he had hoped to read at the sentencing, which included an expression of remorse. The appellant reiterates here the importance of the trial judge’s references to a lack of remorse as an aggravating factor in arguing that had the trial judge heard from the appellant, the resulting sentence could well have been affected.

16While the appellant should have had the opportunity to address the court, the appellant has not established a link between any potential statement he could have made and a change to his sentencing, which already included significant attention to mitigating factors, and, as we note above, was not based on a harsher sentence due to any failure to express remorse.

3. Reasonableness of the Sentence

17Third and finally, with respect to the reasonableness of the sentence, we see no basis to interfere with the trial judge’s exercise of discretion in determining a jail sentence was required given the seriousness of the assault and uttering threats involving the appellant’s grandmother. The trial judge concluded:

With respect to the other two offences, punching your grandmother is low, threatening to kill her is right down there too. It calls for a jail sentence. Even for a first offender that is calling for a jail sentence. But in my view, I should take into account the principle of totality. I have already taken into account the principle of restraint with respect to the other offences, and I will do that again here. [Emphasis added.]

18The appellant argues that, as a youthful, first-time offender who pleaded guilty to the assault and uttering threats, he should have received a suspended rather than a custodial sentence. While a suspended sentence may well have been open to the trial judge on this record, this does not make his conclusion that a jail sentence was required an error.

19In our view, the appellant’s sentence was reasonable.

Disposition

20For these reasons, we grant leave to appeal the sentence but dismiss the sentence appeal.

21We thank the appellant, duty counsel and counsel for the Crown for their helpful submissions.