COURT OF APPEAL FOR ONTARIO DATE: 20200213 DOCKET: C65692

Gillese, Rouleau and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Terry Robert Fuller Appellant

Counsel: Michael Ellison, for the appellant Adam Wheeler, for the respondent

Heard: January 13, 2020

On appeal from the sentence imposed on December 20, 2017 by Justice Robert S. Gee of the Ontario Court of Justice, with reasons reported at 2017 ONCJ 865.

REASONS FOR DECISION

A. Overview

[1] The appellant pled guilty on the basis of a joint sentencing position. The sentencing judge expressed concern with that position, after which the parties proposed another joint sentencing position. In the end, the appellant received a sentence that exceeded both joint positions.

[2] The appellant argues that the sentencing judge erred when he departed from both joint positions in the court below. He asks that leave to appeal sentence be granted, the appeal be allowed, the custodial portion of the sentence be set aside, and a new sentence imposed that reflects the final joint position. We agree.

B. Background

(1) The facts before the sentencing judge

[3] The 55-year-old appellant pled guilty to one count of robbery. Under the influence of fentanyl, he entered a pharmacy wearing a baseball cap, a hoodie, and sunglasses. He pulled out a knife with a five-inch blade and demanded that the pharmacist give him narcotics. He filled his bag with numerous bottles and packages of drugs, including fentanyl patches, hydromorphone, and oxycodone. It is agreed that he did not know how many drugs he had taken. The appellant then fled the scene in his getaway vehicle – a bicycle – and ran straight into a police cruiser that was responding to the 9-1-1 call.

[4] There is no suggestion that the appellant took the drugs for anything other than his own personal use, to feed an opioid addiction that he developed as a teen when he was prescribed opioids for an injury.

[5] The appellant has a very lengthy criminal record which bespeaks a lifelong challenge with drug addiction. It includes 70 prior convictions, 3 of which are for robbery. Two of the robbery convictions, though, are from 26 years prior to this offence and resulted in the appellant receiving a sentence of three years’ custody to be served concurrently on each count. The last robbery conviction was entered six years before the offence that is the subject of this appeal. For that robbery conviction, the appellant received a sentence of approximately nine months. That was also the appellant’s last conviction before the robbery that forms the backdrop of the sentence appeal in this case.

[6] Other than the 3-year sentence from 26 years prior to this offence, the appellant had never received a penitentiary sentence.

(2) The proceedings at sentencing

[7] The appellant pled guilty about one month after the offence was committed. A joint position was advanced by experienced trial and Crown counsel.

[8] The original joint position was for two years’ custody in addition to pre-sentence custody. At that time, the appellant had served the equivalent of 51 days pre-sentence custody. The sentencing judge expressed concern with that joint position given, among other things, the appellant’s lengthy criminal record, as well as the nature and quantity of the drugs stolen. The matter was put over to allow a pre-sentence report to be prepared.

[9] The matter returned to court about a month later. At that point, the pre-sentence custody had increased to the equivalent of 91 days. Counsel agreed that, if sentencing had proceeded on that day, and the joint position had been accepted, the equivalent of a 27-month sentence would have been imposed.

[10] The sentencing judge was still not satisfied with the joint position. At counsel’s request, the matter was adjourned to permit the appellant to bring an application to set aside his guilty plea. That application was heard three weeks later and taken under reserve.

[11] On December 20, 2017, the matter returned to court for the fourth time. At the commencement of the hearing, the appellant’s counsel informed the sentencing judge that the parties were proposing a new joint position:

[A]fter your extensive review of this matter, I met with the Crown Attorney. They have reviewed the matters again and because of all of the exigencies, we would like to offer a joint submission for time served plus three years, boosting it up a further year from what it was. At the time it would be an effective sentence of 40.5 months , which for all the reasons we have put on the record, et cetera , this was a late-breaking development so sorry to surprise you with it. [Emphasis added.]

[12] Instead of two years custody, counsel were now jointly suggesting a three year custodial term, in addition to time served, which, by that point, was the equivalent of 4.5 months. In other words, counsel were now suggesting a sentence that included an additional year of custody. The sentencing judge immediately dismissed the new position, saying: “[F]or the reasons I’m about to deliver … that is not agreeable in the circumstances ” (emphasis added). The sentencing judge never addressed why the final joint position was “not agreeable”. Instead, he gave reasons for refusing to allow the appellant to set aside his guilty plea, followed by reasons for why the original joint position of two-years’ custody in addition to pre-sentence custody was, in his view, inadequate. He then sentenced the appellant to a five-year sentence, minus 4.5 months for pre-sentence custody, leaving the appellant with 55.5 months to serve.

C. The parties’ positions on appeal

[13] The appellant does not challenge the decision refusing to allow him to set aside his guilty plea. Instead, he challenges the fact that the joint positions were rejected.

[14] While the appellant acknowledges that the sentencing judge followed the correct procedural steps when contemplating rejecting a joint position, he argues that the sentencing judge fundamentally misapplied the threshold test justifying a departure from a joint position. The appellant argues that the sentencing judge erred in failing to grapple with the final joint position advanced by counsel and why that proposed sentence would so seriously harm the administration of justice that it could not be countenanced.

[15] Crown counsel on appeal takes a different position than the trial Crown who arrived at and advanced the joint positions. Contrary to the trial Crown’s position, Crown counsel on appeal argues that both joint positions were clearly contrary to the public interest and proper administration of justice. While Crown counsel acknowledges that joint positions should not be lightly interfered with, the circumstances of this case and this offender demanded the imposition of a sentence that well exceeded what was being proposed to the sentencing judge. Accordingly, it was not necessary for the sentencing judge to address the final joint position, given that it so badly fell below the mark of a reasonable joint position.

D. Analysis

[16] A joint position on sentence following a guilty plea should only be rejected in rare cases because such positions are “vitally important to the well-being of our criminal justice system, as well as our justice system at large”: R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 25. Given that such positions “help to resolve the vast majority of criminal cases in Canada” and promote a “fair and efficient criminal justice system”, deference to those positions should be the rule, not the exception: R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 47. The effective and efficient operation of our criminal justice system relies on litigants enjoying a high degree of confidence that joint positions will be accepted when guilty pleas are entered.

[17] While joint positions are not immutable, they should only be interfered with in exceptional circumstances. The question is not whether a joint position results in a fit or a demonstrably unfit sentence, but whether the “proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest”: Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions , the Hon. G. Arthur Martin, Chair (Toronto: Queen’s Printer for Ontario, 1993), at p. 327 (“the Martin Report ”).

[18] In Anthony-Cook, at para. 34, Moldaver J. amplified upon the public interest test referred to in the Martin Report :

a joint submission should not be rejected lightly … Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold – and for good reason …

[19] There is no dispute that the sentencing judge was aware of this test and properly articulated it in his reasons for rejecting the joint position. The difficulty is that he only applied the test against the first joint position of two years in addition to pre-sentence custody.

[20] The appellant argues that the explicit rejection of the initial joint position and implicit rejection of the second joint position reveal a fundamental misunderstanding of the inherent value of guilty pleas arising from joint positions. In oral submissions, the appellant acknowledged that, because the parties amended their joint position, the remedy sought is the imposition of the second joint position. As a result, there is no need for this court to address whether the original joint position was erroneously rejected by the sentencing judge. We should not be taken as commenting either way on the matter.

[21] The fact is that the parties listened to the trial judge’s initial expressions of concern, discussed the matter between themselves, and returned to court to suggest a new joint position. Clearly, the parties were under no obligation to advance a new joint position. Indeed, it will be the very rare case where this will occur. Joint positions are not intended to be moving targets. Having regard to the recognized value to accused, victims, witnesses, counsel, and the administration of justice more broadly, judges should only challenge the appropriateness of joint positions in rare cases. Having done so in this case, though, and having been presented with a new joint position, fairness demanded that the newly proposed joint position be addressed.

[22] The fact remained that the appellant had given up his right to a trial and pled guilty at the earliest possible opportunity. Having done so, the sentencing judge should have addressed why, through the imposition of a 40.5-month sentence, a reasonable person would be led to believe that the proper functioning of the justice system had broken down.

[23] Having failed to apply that test to the second joint position, it falls to this court to do so.

[24] In our view, the circumstances of this case did not justify departing from the final joint submission. The fact is that it was not far from the four-year sentence imposed by this court against one of the offenders in R. v. Chuvalo (1987), 24 O.A.C. 71 (C.A.), a decision that the sentencing judge acknowledged “most closely resembles this case”. On a Crown appeal, this court increased a sentence for robbery of a pharmacy from 22 months to 4 years. While the respondent in Chuvalo was much younger than the appellant in this case, he also had a criminal record which included convictions for robbery and possession of a dangerous weapon. Unlike this case, the Chuvalo case involved two armed robbers: one had a hatchet and the other a knife. Unlike this case, one of the offenders actually used the butt end of the hatchet to strike a pharmacist and also swung the hatchet at the head of a clerk.

[25] Despite the more serious facts involved in Chuvalo, the hatchet-wielding offender received a sentence of only 7.5 months more than the jointly recommended 40.5-month sentence in this case.

[26] Crown counsel acknowledged during oral submissions in this court that a four-year sentence in this case would have been within the range, albeit at the bottom end of that range. If that is so, it cannot be said that the final joint position was so “unhinged” from the reality of the situation that a reasonable and informed person would think that the justice system had broken down if the joint position had been adhered to. This is particularly true in light of the appellant’s extremely early guilty plea, which relieved the Crown of its obligation to prove the appellant’s guilt, showed the appellant’s remorse, saved witnesses from testifying, and saved the public the cost that would have been involved in running a trial.

E. Disposition

[27] Leave to appeal sentence is granted and the appeal is allowed. The custodial portion of the sentence (four years and seven and a half months) is set aside and replaced with a three-year custodial term. The pre-sentence custody of four and a half months remains the same, but is in addition to the three-year custodial term. The victim fine surcharge order is set aside. The sentence remains the same in all other respects.

“E.E. Gillese J.A.”

“Paul Rouleau J.A.”

“Fairburn J.A.”