Court of Appeal for Ontario

Date: 20220610 Docket: C69133

van Rensburg, Pardu and Copeland JJ.A.

Between

Her Majesty the Queen Respondent

and

Marcy McMahon Appellant

Counsel: Amanda Ross, for the appellant Lisa Csele, for the respondent

Heard and released orally: June 8, 2022

On appeal from the sentence imposed on February 17, 2021, by Justice Allan G. Letourneau of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant pleaded guilty and was convicted of possession for the purpose of trafficking 138 grams of methamphetamine, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. After a joint submission, she received a custodial sentence of eight months. She appeals her sentence based on fresh evidence.

[2] The Crown consents to the admission of the fresh evidence and to this court allowing the appeal on the terms proposed by the appellant, that is, the substitution of a 23-month conditional sentence in the terms reflected in the draft order submitted with the appeal, followed by one year of probation.

[3] The fresh evidence consists of the affidavits of the appellant and the lawyer who represented her at the plea proceedings. The evidence explains that, based on the advice of her plea counsel, the appellant was unaware of the legal availability of a conditional sentence at the time of her guilty plea and sentencing, and that a conditional sentence would have been requested, had it been available. At the time she entered her guilty plea in February 2020, the appellant had discussed the possible sentences with her plea counsel and was told, correctly, that, based on the law at the time, she was not legally eligible for a conditional sentence. The matter was adjourned for a pre-sentence report and ultimately was returned to the court for sentencing in February 2021. In the interim, this court released its decision in R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209, the effect of which was to make a conditional sentence available to the appellant. It was only after the appellant entered custody that this was brought to her attention.

[4] We accept that the fresh evidence meets the test in Palmer v. The Queen, [1980] 1 S.C.R. 759, for admission on appeal. The fresh evidence also speaks to the appellant’s rehabilitation. The offence was committed at a time that she was addicted to crystal meth and supported her habit by selling the drug. She has abstained from using the drug for three years, and she has remained sober since the charges were laid. The appellant accepted responsibility for her conduct and demonstrated remorse in her guilty plea and as supported by the pre-sentence report. She was on bail for 22 months pre-sentence and, after spending 16 days in custody, she has been on bail pending appeal for over a year, all without incident. This was not a case where the sentencing judge considered and rejected the possibility of a conditional sentence; his reasons simply stated that there was no legal basis to reject the joint submission.

[5] We are satisfied, based on all of the circumstances, that it is appropriate to allow the appeal, and that the sentence proposed in the joint submission is fit. Accordingly, we allow the appeal and substitute a conditional sentence of 23 months in the terms of the draft order which we hereby approve, and 12 months’ probation on the statutory terms.

“K. van Rensburg J.A.”

“G. Pardu J.A.”

“J. Copeland J.A.”