COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Talbi, 2020 ONCA 388

DATE: 20200617

DOCKET: C67119

Hoy, MacPherson and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Talbi

Appellant

Adam Talbi, acting in person

Lindsay Daviau, appearing as duty counsel

Jessica Smith Joy, for the respondent

Heard: June 3, 2020 by Videoconference

On appeal from the sentence imposed on June 11, 2019 by Justice Sally A. Gomery of the Superior Court of Justice.

REASONS FOR DECISION

[1] On April 10, 2017, during the course of an investigation into the death of Jacob Thompson, the police intercepted a telephone call between the appellant, Adam Talbi, and a woman who was a subject of the investigation. On the call, the appellant stated that he had grabbed a "thing" from her house. At the time, the appellant was bound by a condition to not possess any weapons.

[2] In the days following the call, the police came to learn that the "thing" was a handgun and that the appellant was holding it for the woman's brother, who was also a subject of the investigation and who had been charged with second-degree murder in connection with the death of Mr. Thompson. The police also learned that, while the appellant was holding the gun, the woman was helping to broker a sale between the gun's owner, Christopher Morris, and a third party.

[3] On April 20, 2017, the police observed the appellant and Mr. Morris enter the woman's home, bringing with them the loaded restricted firearm. The sale was completed at some point the next day by Mr. Morris and the third party.

[4] On April 26, 2017, the police executed a search warrant at the purchaser's residence where they found a loaded .22 calibre revolver. The appellant was subsequently arrested and later released on bail with strict conditions, including to remain at his residence except with written permission of his surety, and to not associate with any individuals known to have a criminal record.

[5] While on bail, the appellant was arrested and charged on two occasions for breaching his bail conditions. On the second occasion, which occurred on December 21, 2018, the appellant was found to be outside his residence without permission and in the company of a person with a criminal record. During the encounter, the appellant also obstructed the police by providing two false names.

[6] On May 27, 2019, the appellant pled guilty to four offences: possession of a loaded restricted firearm, possession of a handgun contrary to a prohibition order, obstruction of a police officer, and failure to comply with a recognizance, contrary to ss. 95(2), 117.01(3), 129(a), and 145(3) of the Criminal Code, R.S.C. 1985, c. C-46.

[7] On sentencing, the Crown requested 30 months' imprisonment for possession of the restricted firearm, four months consecutive for possession contrary to the prohibition order, and two months consecutive for the obstruction and breach of recognizance (for a global sentence of 36 months' imprisonment).

[8] In her reasons for sentence, the trial judge incorrectly stated that the Crown sought a sentence of 36 months' imprisonment for the possession charge and a global sentence of 42 months. She went on to sentence the appellant to 36 months' imprisonment for possession, two months consecutive for possession contrary to the prohibition order, and one month consecutive for both the obstruction and breach. The appellant thus received a global sentence of 39 months, less nine months' credit for presentence custody.

[9] On appeal, the appellant argues that the sentence for possession is unduly harsh and that a fit sentence would be 30 months' imprisonment, resulting in a global sentence of 33 months, less presentence custody.

[10] We agree. The trial judge committed an error in principle when she misapprehended the sentencing submissions of Crown counsel and imposed a sentence higher than what both the Crown and defence were asking for, without giving any reasons or explanations as to why. The Crown acknowledged on appeal that the trial judge did not correctly reiterate Crown counsel's sentencing submissions and that the sentence imposed is above the sentence requested.

[11] Mindful of our authority to intervene on appeals from sentence under R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, we are persuaded that this is an appropriate case to intervene and allow the sentence appeal. We agree with the appellant that a sentence of 30 months' imprisonment for the possession offence is fit. This sentence accords with the trial judge's decision to impose a global sentence three months less than what she believed was requested by the Crown.

[12] Accordingly, the current sentence for possession will be vacated, and a sentence of 30 months' imprisonment will be imposed. The breakdown of the resulting global sentence is as follows: 30 months' imprisonment to be imposed on the s. 95(2) offence (possession of a loaded restricted firearm); two months consecutive to be imposed on the s. 117.01(3) offence (possession of a firearm contrary to a prohibition order); and one month consecutive for the obstruction of justice and breach of recognizance offences. The global sentence is thus 33 months' imprisonment, less nine months' credit for presentence custody.

"Alexandra Hoy J.A."

"J.C. MacPherson J.A."

"M. Tulloch J.A."