Court of Appeal for Ontario

Date: 2019-06-05 Docket: C60312

Judges: Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Jerry Cox Appellant

Counsel

Paul Alexander, for the appellant

Deborah Krick, for the respondent

Heard and released orally: June 3, 2019

On appeal from: the sentence imposed on March 17, 2015 by Justice Antonio Di Zio of the Ontario Court of Justice.

Reasons for Decision

[1] Mr. Cox was convicted of a number of offences relating to a robbery with a firearm that occurred in 2010. At the sentencing hearing held in 2015 he conceded his designation as a dangerous offender based on the state of the law at that date.

[2] On March 17, 2015 the trial judge sentenced Mr. Cox to indeterminate detention. Mr. Cox appeals that sentence.

[3] He alleges a number of errors including that, contrary to the decision in R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, a decision rendered after his sentencing hearing, the trial judge presumed that Mr. Cox must be sentenced to indeterminate detention unless it was established that a reasonable expectation exists that Long Term Offender sentencing is sufficient.

[4] The Crown concedes this Boutilier error but urges that this is one of those rare cases where the proviso should be used. We do not agree. The trial judge's conclusions derive from the improper presumption he applied. It cannot be said that there is no reasonable possibility that the verdict would not have been different had this error not occurred.

[5] In our view, given the complexity of the evidence and developments that have occurred since March of 2015, it is not in the interests of justice for this court to attempt to determine the appropriate sentence.

[6] We therefore allow the appeal, set aside the sentence and order pursuant to s. 759(3)(a)(ii) that a new sentencing hearing be conducted. We direct that the hearing be expedited.

[7] In our view, Mr. Cox should not be foreclosed from available treatment pending this hearing.

[8] Finally, to be clear, we are not of the view that Mr. Cox should be held at the rehearing to the concession of his dangerous offender status he made at the initial sentencing hearing.

"Alexandra Hoy A.C.J.O." "C.W. Hourigan J.A." "David M. Paciocco J.A."