COURT OF APPEAL FOR ONTARIO

DATE: 2006-10-11

DOCKET: C45531

RE: HER MAJESTY THE QUEEN (Respondent) – and – MICHAEL CRAIG TSICOS (Appellant)

BEFORE: CRONK, LANG and MacFARLAND JJ.A.

COUNSEL: James Zegers, for the appellant David Friesen, for the respondent

HEARD & RELEASED ORALLY: October 6, 2006

On appeal from the sentence imposed by Justice R.G. Hunter of the Ontario Court of Justice, dated March 15, 2006.

E N D O R S E M E N T

[1] The appellant pleaded guilty to one count each of possession of a firearm without being a holder of a licence and possession of a firearm while prohibited from doing so. Notwithstanding a joint submission by Crown and defence counsel that a fit sentence in the circumstances was time served, being the equivalent of 11 months incarceration, the sentencing judge imposed a sentence comprised of time served, credited on a two-for-one basis, and an additional nine months incarceration.

[2] In our opinion, the sentencing judge erred in principle in rejecting the joint submission. The sentencing judge provided no analysis or explanation in his reasons as to why it would be contrary to the public interest or bring the administration of justice into disrepute if effect was given to the joint submission. Indeed, he made no reference at all to this high threshold for declining to accept the joint submission. Instead, in very brief reasons, he merely indicated that he had “some problems” with the joint submission given the appellant’s criminal record, the appellant’s breach of the firearm prohibition order and his possession of the firearm in question – an unloaded handgun.

[3] In the absence of further explanation, these factors, which were clearly known to both counsel, did not establish that the joint submission was contrary to the public interest or that it would bring the administration of justice into disrepute.

[4] In addition, the sentencing judge rejected the joint submission without informing counsel that he was disinclined to accept it and affording them an opportunity to make further submissions on the matter. Although the sentencing judge was not required to accept the joint submission, this court has emphasized on numerous occasions the high threshold for rejecting a joint sentencing submission given the need, among other matters, to foster confidence by an accused, who gives up his right to a trial, that a joint sentencing submission obtained in return for a plea of guilty will be respected by the sentencing judge and, at least, not disregarded without sufficient cause.

[5] In this case, the exchange that occurred between the appellant and the sentencing judge immediately following the pronouncement of sentence makes it abundantly clear that this important objective was frustrated.

[6] Finally, if the sentencing judge was not prepared to accept the joint submission, it was incumbent on him to then consider fully the circumstances of these offences and this offender in determining a fit sentence. Given the reasons of the sentencing judge, we cannot be satisfied that this obligation was met in this case.

[7] Accordingly, leave to appeal sentence is granted, the sentence appeal is allowed, and the appellant’s sentence is reduced from 20 months to a total of 11 months incarceration, that is, time served.

“E.A. Cronk J.A.”

“S. E. Lang J.A.”

“J. MacFarland J.A.”