Court of Appeal for Ontario

Date: 2019-04-23 Docket: C65877

Justices: Juriansz, Watt and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Jonathan Nicholson Appellant

Counsel

Jessica Zita, for the appellant

Susan Reid, for the respondent

Heard

April 17, 2019

On Appeal

On appeal from the sentence imposed on July 27, 2018 by Justice Robert P. Main of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from the sentence imposed after he pled guilty to charges of break and enter (x 2), assault police with intent to resist arrest, possession of stolen property over $5,000, breach of probation, possession of counterfeit mark, and mischief to property under $5,000. All offences except the mischief to property, which was committed on February 12, 2018, were committed on December 18, 2017.

[2] During the sentencing submissions, both counsel reminded the sentencing judge that at a judicial pre-trial held with respect to the December offences only, the judge had indicated that "something around the range of two and one-half years" would be "a fair position". Neither counsel suggested to the sentencing judge that he (the judge) had said he would impose a sentence of 30 months for those offences.

[3] As was clear from the outset of the sentencing proceedings, counsel were not advancing a joint submission on sentence. Each made submissions. Neither sought a sentence of 30 months for the December offences or the offences as a whole. The Crown sought a global sentence of 45 months, the defence one of 18 months to 2 years.

[4] In his reasons, the sentencing judge referred to defence counsel's reminder about what had occurred at the pre-trial. The judge reviewed his notes of the pre-trial. After the Crown had advanced a proposed range of sentence, the judge described his response:

I made a reflection on what I thought appropriately could reflect adequate denunciation for this behaviour.

[5] On appeal, the appellant submits that the sentencing judge's departure from the range he had indicated at the pre-trial was unfair. He requests that his sentence for the December offences be reduced to 30 months.

[6] We would not give effect to the submission. There is no evidence to support the assertion of counsel that the appellant entered his pleas of guilty relying on the judge's remarks at the pre-trial. The appellant has not moved to set aside his guilty plea and he has not alleged ineffective representation by counsel.

[7] The appellant relies on R. v. O'Quinn (2002), 59 O.R. (3d) 321 (C.A.), 159 O.A.C 186, but this case is quite different. At the pre-trial in O'Quinn, the judge had stated in "unequivocal terms" that on a guilty plea he would impose a certain sentence. He was not reminded of what he had said at the pre-trial, and the greater sentence he imposed was for the offences discussed at the pre-trial. None of these features are present in this case.

[8] The appellant does not submit that the sentence imposed is otherwise unfit for the seriousness of the offences and the circumstances of the offender, particularly his extremely lengthy criminal record.

[9] Leave to appeal sentence is granted. The victim fine surcharges imposed on the appellant are set aside, with the agreement of the Crown. The appeal is otherwise dismissed.

R. G. Juriansz J.A.

David Watt J.A.

A. Harvison Young J.A.