COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jewell, 2016 ONCA 480

DATE: 20160616

DOCKET: C58886

Hoy A.C.J.O., Laskin and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Susanne Jewell

Appellant

Robin K. McKechney, for the appellant

Amy Rose, for the respondent

Heard and released orally: June 13, 2016

On appeal from the sentence imposed by Justice Louise Serré of the Ontario Court of Justice on May 29, 2014.

ENDORSEMENT

[1] The appellant was charged with two counts of assault, one count of criminal negligence causing bodily harm, one count of mischief and one count of criminal harassment arising from her employment as a personal support worker at a nursing home. At the preliminary inquiry, the appellant was committed for trial on all counts.

[2] Following the conclusion of the preliminary inquiry, the Crown and defence agreed on a joint submission for an eight-month conditional sentence followed by one year’s probation on a guilty plea by the appellant to the two counts of assault and one count of criminal harassment. Counsel met with the preliminary inquiry judge to discuss the proposed resolution. At the conclusion of that meeting, counsel for the appellant understood that the preliminary inquiry judge had approved the proposal and communicated this to the appellant. The appellant then elected to be tried by the preliminary inquiry judge and pled guilty to the two counts of assault and one count of criminal harassment. However, the judge rejected the joint submission and imposed a 90-day intermittent sentence on one count of assault, followed by a six-month conditional sentence on the remaining two counts to which the appellant had pled guilty.

[3] The appellant now appeals her conviction arguing that her guilty plea should be set aside. She also applies for leave to appeal the sentence imposed.

[4] While we are not persuaded that the appellant’s guilty plea should be set aside, we agree that the sentence imposed cannot stand. Counsel for the Crown does not take issue with the evidence of trial counsel that the preliminary inquiry judge had indicated her approval of the joint submission before the appellant pled guilty. Moreover, the judge did not provide any explanation why the joint submission was contrary to the public interest or why the jointly-proposed sentence would bring the administration of justice into disrepute. This omission is particularly glaring, given her prior communication with counsel.

[5] In the circumstances, we dismiss the appeal against conviction, grant leave to appeal sentence, allow the appeal against sentence and impose sentence in accordance with the joint submission.

“Alexandra Hoy A.C.J.O.”

“John Laskin J.A.”

“C.W. Hourigan J.A.”