COURT OF APPEAL FOR ONTARIO

DATE: 20210205 DOCKET: C66347

MacPherson, Trotter and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Tomoi Blake-Samuels Appellant

Counsel: Craig Bottomley and Janelle Belton, for the appellant Nicholas Hay, for the respondent

Heard: January 22, 2021 by video conference

On appeal from the sentence imposed by Justice Antonio Di Zio of the Ontario Court of Justice on October 3, 2017.

MacPherson J.A.:

A. Introduction

[1] The appellant, Tomoi Blake-Samuels, appeals from his sentence on the basis that the trial judge exceeded the Crown’s proposal on sentence without giving notice to counsel and without providing reasons why the proposed sentence was rejected.

[2] The appellant pleaded guilty to possession for the purpose of trafficking, possession of a loaded restricted firearm, possession of a loaded prohibited sawed-off shotgun, and possession of a firearm while prohibited under [s. 51(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1]. At sentencing, defence counsel proposed a two year sentence and Crown counsel proposed a four year sentence. The sentencing judge imposed a global sentence of five years.

B. Facts

[3] In December 2016, police observed the appellant engage in a number of drug transactions. The appellant was arrested on December 13 on his way back to his apartment after one of these transactions. The police executed a search warrant for the appellant’s apartment where they found drug paraphernalia along with two prohibited firearms, and arrested another man in the apartment who was in possession of marijuana and $900.

[4] At the time of his arrest, the appellant was subject to a firearm prohibition order under s. 51(1) of the YCJA as a result of a manslaughter conviction in May 2014 arising from an accidental shooting of his friend. The appellant had no other criminal record.

[5] After a judicial pre-trial conducted by the sentencing judge, the appellant entered a guilty plea on April 7, 2017. In its submissions on sentence, the Crown indicated that a sentence of six to seven years would be appropriate but ultimately proposed a four year sentence. Defence counsel proposed a sentence of two years.

[6] In imposing the sentence almost six months later, the sentencing judge considered the support from the appellant’s mother and sister, that he had a new baby, that he was cooperative with the police, and that he helped his co-accused by accepting full responsibility for the crimes. The sentencing judge also considered the appellant’s serious criminal record and the psychological assessment which indicated that the appellant was a “low moderate risk” for future violent behaviour and a “moderate high risk” for future involvement in the legal system. The sentencing judge indicated that deterrence, denunciation, and protection of society were primary considerations.

[7] Ultimately, the sentencing judge imposed a global sentence of five years, broken down as follows:

• Possession for the purpose of trafficking – 1 year
• Possession of a loaded firearm (two counts) – 4 years concurrent
• Breach of the firearm prohibition order – 1 year consecutive

[8] The sentencing judge then deducted pre-trial custody at a ratio of 1.5:1, made a DNA order and s. 109 order, and imposed an $800 victim fine surcharge.

[9] The appellant has served his sentence and is out of custody.

C. Issues

[10] The appellant appeals his sentence on three grounds. He asserts:

1. The sentencing judge erred by failing to notify counsel that he might impose a sentence beyond the range sought by the Crown and defence;
2. The sentencing judge erred by failing to provide reasons why the proposed sentence range was rejected; and
3. The sentencing judge erred by imposing a sentence beyond the range proposed by counsel.

D. Analysis

(1) The appellant’s position

[11] First, the appellant submits that the sentencing judge’s failure to give notice that he was considering exceeding the sentence proposed by the Crown undermined his right to respond to the case against him. He submits that where an issue has a significant bearing on liberty, the parties must be notified of the issue in order to have an opportunity to respond. Because the parties were not notified that the sentencing judge was considering a sentence beyond four years, neither counsel was able to address why a five year sentence was not proposed and why it was not viewed as necessary to achieve the sentencing principles.

[12] Second, the appellant submits that the failure to provide notice was compounded by the sentencing judge’s failure to provide reasons as to the need for a sentence beyond the Crown’s proposal. The reasons for sentence do not reveal why the principles of sentencing could only be satisfied with a longer sentence than that proposed.

[13] Third, the appellant submits that if the sentencing judge intended to go beyond the range proposed by counsel, he should have applied the public interest test from [R. v. Anthony-Cook, 2016 SCC 43]. This would have meant that the proposed range could not have been rejected unless the sentencing judge was of the view that a four year sentence would bring the administration of justice into disrepute and had notified counsel of his intention to impose a higher sentence: [Anthony-Cook, at para. 32]. While the appellant acknowledges that this case does not deal with a joint position, as in Anthony-Cook, he submits that the same considerations apply.

[14] Finally, it is the appellant’s submission that a four year sentence is fit considering the guilty plea, that he took responsibility for his actions, his age, his family support, and his mental health issues.

(2) The respondent’s position

[15] The respondent submits that, while the sentencing judge should have provided the parties with an opportunity to make submissions before exceeding the Crown’s proposed sentence, the appeal should be dismissed because the sentence was fit. It is the respondent’s position that any procedural unfairness resulting from the failure to give notice can be cured on appeal by giving the appellant the opportunity to make full submissions on the fitness of the sentence.

[16] The respondent takes issue with any application of Anthony-Cook because there was no joint position and the range proposed did not form part of a plea bargain. The respondent submits that because there was no joint position, the sentencing judge was free to exceed the Crown’s position if he felt it was necessary to fashion a fit sentence, without resorting to the public interest test.

[17] Further, the respondent submits that despite any procedural error, the sentence was fit. The sentencing judge was justified in exceeding the Crown’s position as sentences for repeat firearm offenders rarely dip below six years.

(3) Legal framework

[18] The starting point for an appeal court when considering a sentence appeal is [R. v. Lacasse, 2015 SCC 64]. An appellate court may interfere with a sentence where: 1) there is an error in principle, a failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor, or 2) the sentence is unfit: [Lacasse, at paras. 43, 51]. Not all errors in principle will warrant intervention. Appellate intervention will only be justified “where it appears from the trial judge’s decision that such an error had an impact on the sentence”: [Lacasse, at para. 44].

[19] In [R. v. Grant, 2016 ONCA 639], this court held, at para. 164:

A trial judge is entitled to go beyond the Crown’s position if the sentence imposed is still reasonable. But a long line of authority in this court has held that when a trial judge proposes to do so, the trial judge should alert the parties and give them an opportunity to make further submissions. And ideally, if the trial judge still does impose a sentence in excess of a Crown’s position, the trial judge should explain the reason for doing so.

[20] On a number of occasions, this court has indicated that a sentencing judge should have informed the parties that they intended to exceed the Crown’s sentencing proposal, but has nevertheless upheld the sentences as fit: [R. v. Hagen, 2011 ONCA 749, at paras. 5-6]; [R. v. Rosenberg, 2017 ONCA 313, at paras. 3-4]; [R. v. Bush, 2012 ONCA 743, at para. 11]; [R. v. Sinasac, 2015 ONCA 735, at para. 3].

[21] None of the cases from this court deal with the present situation, where a sentencing judge exceeds the Crown’s proposed sentence and fails to provide reasons for doing so.

[22] In [R. v. Ibrahim, 2011 ONCA 610], this court stated: “[t]his court has held that a trial judge does not err by exceeding the prosecutor’s suggested sentence, provided that the sentence is reasonable, even in the absence of reasons for departing from the prosecutor’s suggestion”: at para. 14. However, in that case, the parties were given notice that the sentencing judge intended to go beyond the sentence proposed by the Crown and trial counsel made no objection.

[23] There is more clarity on the proper process in [R. v. Kravchenko, 2020 MBCA 30, at para. 32]. Although not binding on this court, it is useful here:

The parties agree that the judge did not have to apply the public-interest test from Anthony-Cook to deviate upward from the Crown’s position on sentence. What was before her was not a joint submission as there was not a “full agreement as to the appropriate sentence” (Anthony-Cook at n. 1). It is not disputed that this error was, however, harmless (see Houle at para. 11). Assuming appropriate caution has been taken to ensure that the requirements of section 606(1.1) of the Code are complied with in the case of a guilty plea (as was the case here), fair warning has been given of the possibility of departure from the range suggested by counsel and the parties have had a fair opportunity to respond, the judge is entitled to impose a proportionate sentence outside the range. That said, as I will explain later, a sentencing judge’s reasons must adequately explain a principled rationale for the departure. [Emphasis added.]

[24] Further guidance is available from Clayton C. Ruby, Sentencing, 9th ed. (LexisNexis, 2017), at para. 3.93 referring to [R. v. Keough, 2012 ABCA 14]:

Section 7 of the Charter would seem also to require that the judge provide an opportunity to make submissions where the judge intends to impose a higher sentence than recommended by the Crown. The Court of Appeal dismissed the appeal because although an opportunity to be heard was not afforded to counsel, which was wrong, the sentence was nonetheless within the proper range. This is a principle that governs the fitness of a sentence. But it seems inappropriate when we do not know where on the proper range the sentence would have been fixed if the judge had heard effective submissions. As is made clear by the law outlined above, clarity is required on whether it is required or recommended that a sentencing judge notify the parties that they intend to exceed the sentencing range proposed by counsel, whether reasons are required, and how an appellate court should approach the situation.

[25] The appellant proposed that the public interest test from Anthony-Cook, decided in the context of a sentencing judge exceeding a joint submission, should also apply when a sentencing judge intends to exceed the Crown position irrespective of a joint submission. There, Moldaver J. held that, under the public interest test, “a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest”: at para. 32.

[26] Moldaver J. further explained this standard, at para. 34:

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.

[27] This is a high threshold. Moldaver J. continued on to explain that such a stringent test is appropriate because of the benefits of joint submissions. A lower threshold would “cast the efficacy of resolution agreements into too great a degree of uncertainty”: at para. 42.

[28] Beyond the public interest test, Anthony-Cook also offers some underlying considerations that are relevant to this appeal. It states that “if the trial judge is not satisfied with the sentence proposed by counsel, ‘fundamental fairness dictates that an opportunity be afforded to counsel to make further submissions in an attempt to address the…judge’s concerns before the sentence is imposed’”: at para. 58, citing [R. v. G.W.C., 2000 ABCA 333, at para. 26]. If the judge, after receiving submissions, remains unsatisfied with the position, the judge “should provide clear and cogent reasons for departing from the joint submission”: at para. 60.

(4) Application of the law

[29] There is no dispute that a sentencing judge retains discretion to exceed the Crown’s position on sentencing. What is in issue is the process that must be followed when a sentencing judge wishes to exercise that discretion. This court has not previously had the opportunity to answer this question in the context where a sentencing judge has both failed to provide notice of an intention to exceed the Crown’s proposal on sentence and failed to provide reasons for that decision.

[30] In my view, if a sentencing judge intends to exceed the Crown’s position on sentence, the judge is required to notify counsel, provide an opportunity for further submissions, and provide clear and cogent reasons for imposing a sentence beyond the Crown’s position.

[31] I will deal with the appellant’s issues together as they all bear on one another.

[32] Fundamental fairness requires the parties to be permitted to make further submissions if the sentencing judge intends to exceed the sentence proposed by the Crown and clear and cogent reasons are required if the judge, having heard additional submissions, still believes it necessary to go beyond the Crown’s position.

[33] More than a recommendation that sentencing judges follow this procedure is required. It is not appropriate to deny procedural fairness during the sentencing process with the expectation that any error can be cured on appeal. It is contrary to the commitment to access to justice, contrary to natural justice, and contrary to a commitment to judicial economy to permit sentencing judges to go beyond counsel submissions and force offenders to rely on the appeal process to ensure fairness. Fairness should be afforded at all steps.

[34] In this case, the failure to notify counsel of a possible sentence beyond the Crown’s proposal was compounded by the failure to provide reasons why the additional time was imposed. The reasons for sentence do not reveal why the principles of sentencing could only be satisfied with a longer sentence than that proposed.

[35] Indeed, it is clear that defence counsel did not understand the need to go beyond the Crown’s position. Her concern and confusion is highlighted, in part, in these comments made immediately after the sentence was imposed:

But not being able to make any further submissions or anything else to deal with 365 days over and above what my friend was even seeking….

Your Honour had not pointed to any area of the pre-sentence report that was so aggravating that would cause Your Honour to disagree with the Crown's suggested range. … I don't understand what about the pre-sentence report is particularly aggravating.

[36] Lacasse permits this court to intervene in a sentence when there has been an error in principle that has affected the sentence. It is impossible to say that the sentence was not impacted by the unavailability of submissions – our adversarial system relies on counsel’s presentation of submissions and framing of the issues. Neither party had an opportunity to explain why a four year sentence was appropriate or why a longer sentence would not be appropriate in the circumstances.

[37] The respondent takes the position that regardless of the procedural deficiency the sentence imposed was fit and that this court should not intervene. During sentencing submissions, the Crown indicated that, in general, a sentence of up to seven years could be appropriate. However, Crown counsel’s submission was nonetheless that four years was an appropriate sentence for this specific offender in his specific circumstances. Reverting to general ranges does not address the specificity required in sentencing and provides no indication to the offender, or the public, of why the sentence imposed was appropriate in the circumstances.

[38] I would agree with the statement from Clayton Ruby above that a finding on appeal that a sentence was fit despite there having been no opportunity for submissions “seems inappropriate when we do not know where on the proper range the sentence would have been fixed if the judge had heard effective submissions.” Here, the need to intervene is compounded by the lack of reasons explaining the need to exceed the Crown’s position.

[39] Where, as here, a sentencing judge makes an error in principle that has an impact on the sentence “an appellate court must perform its own sentencing analysis to determine a fit sentence”: [Lacasse, at para. 43]. This means that the appellate court will “apply the principles of sentencing afresh to the facts, without deference to the existing sentence, even if that sentence falls within the applicable range”: [R. v. Friesen, 2020 SCC 9, at para. 27].

[40] In this case a sentence of four years, as proposed by the Crown at sentencing, would be a fit sentence considering the factors raised by the appellant: the guilty plea, that the appellant took responsibility for his actions, his age, his family support, and his mental health issues.

E. Disposition

[41] I would allow the appeal and substitute a sentence of four years. The victim fine surcharge of $800 is vacated on consent of the parties per [R. v. Boudreault, 2018 SCC 58].

Released: “JCM” FEB 05 2021

“J.C. MacPherson J.A.”

“I agree. Gary Trotter J.A.”

“I agree. Harvison Young J.A.”