Court of Appeal for Ontario

Citation: R. v. Creswell, 2020 ONCA 568 Date: 2020-09-09 Docket: C66273

Judges: Paciocco, Nordheimer and Thorburn JJ.A.

Between:

Her Majesty the Queen Respondent

and

Jimmy Creswell Applicant (Appellant)

Counsel: John Fennell, for the appellant Michael Dunn, for the respondent

Heard and released orally: September 9, 2020 by video conference

On appeal from the conviction entered on July 23, 2018 by Justice Heather E. Perkins-McVey of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

[1] Mr. Jimmy Creswell was convicted after pleading guilty to conspiracy to commit aggravated assault, contrary to s. 465(1)(c) of the Criminal Code of Canada, unlawful confinement contrary to s. 279(2) of the Criminal Code of Canada and committing an indictable offence for the benefit of a criminal organization contrary to s. 467.12(1) of the Criminal Code of Canada. The pleas were entered on July 23, 2018. During the sentencing hearing on August 30, 2018, the sentencing judge was presented with a joint position of “time served plus 2 years”. She accepted that joint position and imposed the jointly recommended sentence.

[2] Mr. Creswell now brings a fresh evidence application, and appeals his convictions, arguing that his pleas of guilty were uninformed. He contends that he had not instructed his defence lawyer to agree to the sentence imposed and expected his defence lawyer to argue for a lesser sentence. Mr. Creswell also appeals the victim fine surcharge that formed part of his sentence.

[3] We allow Mr. Creswell’s motion to present fresh evidence but we dismiss his conviction appeal. Mr. Creswell bears the burden of satisfying us that his plea was uninformed: R. v. Quick, 2016 ONCA 95 at para. 28. He has not persuaded us. Defence counsel attests that Mr. Creswell instructed him to accept the joint position. Circumstantial evidence supports that claim, including, most importantly, that Mr. Creswell interjected on more than one occasion during the sentencing hearing to correct mis-information yet remained silent when the joint position was arrived at in open court and then communicated to the sentencing judge. When Mr. Creswell was cross-examined on his fresh evidence affidavit, Mr. Creswell was unsure of conversations he had with defence counsel.

[4] Mr. Creswell’s conviction appeal is dismissed.

[5] The Crown agrees that Mr. Creswell’s appeal of the victim fine surcharge should be granted. We grant leave to appeal the sentence and allow the sentence appeal, only to the extent that the victim fine surcharge is set aside.

“David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “J.A. Thorburn J.A.”