Court of Appeal for Ontario

Citation: R. v. Gomes, 2015 ONCA 763

Date: 20151109

Docket: C58366

Before: Doherty, Laskin and Tulloch JJ.A.

Between

Her Majesty the Queen

Respondent

and

Kyle Gomes

Appellant

Counsel:

Jason Rabinovitch, for the appellant

Brock Jones, for the respondent

Heard: November 9, 2015

On appeal from the sentence imposed by Justice McMahon of the Superior Court of Justice on February 18, 2014.

APPEAL BOOK ENDORSEMENT

[1] The trial judge appreciated that he should follow the joint submission unless he was satisfied that it was clearly not in the public interest to do so. He advised counsel of his concerns and properly gave counsel an opportunity to address his concerns.

[2] Counsel on appeal accepts that the trial judge set out the proper test to be applied in “jumping” a joint submission. He argues, however, that the trial judge looked to inapplicable case law in concluding that the offence required the imposition of a custodial sentence.

[3] We disagree. The trial judge referred to cases from this court which have emphasized the need for denunciatory sentences when accused are found in possession, particularly in public, of deadly firearms. This accused was in possession of a sawed off shotgun on a public street.

[4] It is true that the cases referred to by the trial judge dealt with possession of loaded deadly firearms, an obviously aggravating feature absent in this case. However, the principle remains applicable – possession of deadly prohibited firearms requires a denunciatory sentence.

[5] In our view, it was reasonably open to the trial judge to conclude that the proposed sentence (a conditional sentence) was woefully inadequate and failed to reflect the required general deterrence. We would defer to that assessment.

[6] Crown counsel points out that the s. 109 prohibition order imposed at trial is incomplete. It should be varied to clarify that the appellant is prohibited for life from possessing “any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition.”

[7] The appeal is allowed to vary the terms of the prohibition order. Otherwise, the appeal is dismissed.