The text of the original judgment was corrected on May 26, 2022 and the description of the correction is appended.

Court of Appeal for Ontario

COURT OF APPEAL FOR ONTARIO DATE: 20220505 DOCKET: C69868 Feldman, Tulloch and Miller JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Samiya Bagheri Appellant

Counsel: Michelle Psutka, for the appellant Gavin MacDonald, for the respondent

Heard: March 2, 2022 by video conference

On appeal from the sentence imposed on July 30, 2021 by Justice Peter H. Wilkie of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals his sentence imposed following a guilty plea to one count of possession of a loaded firearm, contrary to s. 95(2) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, one count of possession of the same firearm while prohibited from doing so contrary to s. 117.01(3) of the Criminal Code, and one count of making a false statement contrary to s. 153 (a) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). He submits that the sentencing judge erred in principle by exceeding the Crown’s proposed sentence without notifying counsel and providing an opportunity to make submissions and by failing to provide clear and cogent reasons for doing so. Moreover, the appellant submits that the sentencing judge erred in his consideration of aggravating factors.

[2] We agree that the sentencing judge erred in principle in exceeding the Crown’s proposed sentence without notifying the parties of his intention to do so or providing clear and cogent reasons as to why he exceeded the Crown’s proposed sentence. We also agree that the sentencing judge erred in his analysis by treating the fact that the gun was loaded as an additional aggravating factor when this was in fact an essential element of the offence to which the appellant had pled guilty. In addition, we agree that the sentencing judge erred by not considering the guilty plea as a mitigating factor. As such, the sentence appeal must be allowed.

Background Facts

[3] The underlying facts which gave rise to this appeal are set out below.

[4] On November 9, 2019, the appellant was driving a rental vehicle with two other individuals, including a 15-year-old. While driving, the appellant took a wrong turn and inadvertently ended up at the United States-Canada border at Niagara Falls. The appellant mistakenly drove into the Canada Customs area, even though he had no intent to leave the country.

[5] A Border Services Officer (“BSO”) referred the appellant’s vehicle for secondary inspection. The appellant did not initially comply with the BSO’s instructions and only entered the secondary inspection area after the BSO sounded a non-compliance alarm. The BSOs at the secondary inspection area searched the vehicle and discovered multiple contraband items, including a prohibited firearm loaded with an over-capacity magazine, a tactical handgun holster, two balaclavas, two plastic Halloween style face masks, zip ties, and three bags containing 9.5 grams of cocaine.

[6] At the time of the appellant’s arrest, he was 18 years old and had a substantial youth court record stemming from crimes of violence and firearm-related offences. He was also on a weapons prohibition order. In December 2017, the appellant executed a planned robbery of a convenience store. He was only 15 years old. Two months after that, he was found guilty of another robbery. As recently as April 2019—just months before the Customs area incident at Niagara Falls—the appellant was found guilty of possession of a loaded, prohibited firearm and careless storage of ammunition, among other counts.

[7] In the case at bar, the appellant was arrested on November 9, 2019 and then spent 630 days in pre-sentence custody. He pled guilty in November 2020, one year after his arrest. There was an eight-month delay in imposing sentence due in part to a judicial illness that eventually required the matter to be traversed before the sentencing judge. The appellant’s plea was taken again on June 30, 2021. The matter was subsequently adjourned for sentencing submissions until late July 2021 and the sentence was imposed on July 31, 2021.

Sentence Below

[8] At the sentencing hearing, both the Crown and the defence agreed that the s. 95 offence warranted a penitentiary sentence and that the s. 117.01 weapons prohibition breach warranted a further consecutive sentence: Criminal Code.

[9] The sentencing judge also understood that the Crown and defence counsel had agreed to a six months’ concurrent sentence for the Customs Act charge. Both counsel agreed that some additional credit beyond pre-sentence custody credit of 1.5 to 1 was warranted, although the sentencing judge was of the view that the Crown and defence counsel disagreed upon the characterization and calculation of the credit.

[10] The Crown’s submissions at sentencing were for a global sentence of four years, consisting of three years for the substantive s. 95 offence and one-year consecutive custody for the weapons breach, less pre-sentence custody credited at a 1.5 to 1 ratio.

[11] The Crown did not specify the precise amount of discount for COVID-19 factors but did indicate in their submissions that their position factored in the harsh, collateral consequences of the COVID-19 pandemic and that but for this factor, they would have sought a sentence in the range of five to six years.

[12] The defence sought a global sentence of three years and argued that the sentencing judge ought to calculate pre-sentence custody credit at an enhanced rate beyond the 1.5 to 1 ratio. According to the defence, the appellant faced “harsh and inhumane conditions” while in custody due to persistent COVID-19 lockdowns, which were in turn caused by staff shortages at the detention centre. The defence calculated that the appellant endured 180 days of lockdown. In all, the defence position was comprised of 2.5 years for the s. 95 offence followed by six months consecutive custody for the s. 117 weapons prohibition breach: Criminal Code. The defence position would have resulted in an effective sentence of time served.

[13] After considering the Crown and defence submissions, the personal circumstances of the appellant, the seriousness of the offences, the mitigating and aggravating factors, and the criminal antecedents of the appellant, the sentencing judge imposed a sentence of 4.5 years custody for the s. 95 offence, plus a further eight months consecutive custody for the s. 117 offence, and six months concurrent custody for the Customs Act offence.

[14] The sentencing judge calculated a total sentence of 62 months, from which he subtracted 31.5 months—the result of pre-sentence custody of 630 days assessed at a pre-sentence custody credit ratio of 1.5 to 1—and another six months for COVID-19 and collateral issues. This left a balance of 24.5 months for the appellant to serve, which the sentencing judge rounded down to 24 months. The effective sentence exceeded the Crown’s submissions by 14 months.

Analysis

[15] In meting out the sentence, the sentencing judge did not indicate to the parties that he was going to impose a global sentence that exceeded the Crown’s submissions. Nor did he give the parties an opportunity to make further submissions on the appropriateness of exceeding the Crown’s submissions. He did not indicate through clear and cogent reasons why he exceeded the Crown’s submissions. This in our view is an error in principle that warrants appellate intervention.

[16] A sentencing judge undoubtedly has the discretion to impose a sentence that they deem appropriate within the context of the relevant facts and the applicable legal principles, even if this means departing from a joint submission or exceeding the Crown’s position on sentence: R. v. Blake-Samuels, 2021 ONCA 77, at para. 29. In so doing, however, the sentencing judge must notify counsel and provide an opportunity for further submissions. Further, the sentencing judge must provide clear and cogent reasons for imposing a sentence which exceeds the Crown’s position: Blake-Samuels, at para. 30. Fundamental fairness requires that the parties be permitted to make additional submissions and that the sentencing judge make the appellant aware of their increased penal jeopardy.

[17] The sentencing judge recognized correctly that a significant sentence was required in all the circumstances of this case. However, we agree with the appellant that the sentencing judge erred by treating the fact that the appellant’s gun was loaded as a separate aggravating factor in addition to the fact that there was an over-sized magazine with the gun in the console of the car. He also erred by failing to recognize the guilty plea as a mitigating factor. It may have been these two errors that caused the sentencing judge to impose a sentence that exceeded the Crown submission.

[18] In our view, the sentence requested by the Crown at trial was a fit sentence for the appellant in all the circumstances.

[19] The appellant also contests the trial judge’s calculations of the enhanced credit beyond the standard 1:1 ratio for the harsh conditions and frequent lockdowns occasioned during the COVID-19 pre-trial custody period pursuant to R. v. Duncan, 2016 ONCA 754. This was a discretionary decision for the trial judge to make, and we see no error in the exercise of his discretion, or his ultimate calculation. As such, we would not interfere with the trial judge’s calculation of the Duncan credit or the overall pre-sentence credit calculation that was based upon a 1.5 to 1 ratio.

Disposition

[20] Accordingly, we allow the sentence appeal, vacate the existing sentence, and impose a global sentence of four years’ custody, which reflects a sentence of three years custody for the s. 95 offence, one-year consecutive custody for the s. 117 offence, and six months concurrent custody for the Customs Act offence, less the 38 months of credit for pre-sentence custody awarded by the trial judge.

“K. Feldman J.A.”

“M. Tulloch J.A.”

“B.W. Miller J.A.”

Erratum

Correction made on May 26, 2022: The words “pre-sentence custody credited at a 1.5 to 1 ratio” in para. 20 was replaced with “the 38 months of credit for pre-sentence custody awarded by the trial judge”.