Court of Appeal for Ontario

Date: 2021-12-21 Docket: C69285

Before: Gillese, Brown and Coroza JJ.A.

Between: Her Majesty the Queen, Respondent and Isaiah Norlyn Simmons, Appellant

Counsel: Jessica Zita, for the appellant Erica Whitford, for the respondent

Heard: December 14, 2021

On appeal from the sentence imposed on February 1, 2021 by Justice John A. Desotti of the Superior Court of Justice, with reasons for sentence reported at 2021 ONSC 674.

Reasons for Decision

Overview

[1] The appellant pleaded guilty to possession for the purpose of trafficking cocaine, possession of a loaded prohibited firearm, and possession of a loaded firearm while prohibited from doing so. The appellant received a global sentence of six years’ imprisonment.

[2] The appellant contends that the global sentence of six years is excessive and should be reduced to a sentence in the range of five to five and a half years. In support of this submission, the appellant makes two arguments [1]:

1. The sentencing judge erred in treating the timing of the appellant’s guilty plea (after the preliminary hearing) as an aggravating factor.
2. The sentencing judge failed to consider the appellant’s rehabilitative potential.

[3] At the conclusion of the hearing, we granted leave to appeal sentence but dismissed the appeal for reasons to follow. We now provide our reasons.

Facts

[4] The appellant was arrested following a high-risk police takedown of a car. The appellant was in the front passenger seat. During the takedown, the appellant removed a fully loaded handgun from his waistband to drop it on the floor of the car. He was also found with a firearm magazine containing ten bullets in his jacket pocket. A vacuum sealed plastic bag containing 250 grams of cocaine and crack-cocaine – valued at $25,000 – was also found in the car, along with a digital scale.

[5] At the time of his arrest, the appellant was subject to a ten-year firearms prohibition order. That order had been imposed by a court in 2017 after the appellant’s convictions for possession of a loaded prohibited/restricted firearm and carrying a concealed weapon.

[6] The sentencing judge sentenced the appellant to four years on the possession of a loaded prohibited firearm offence; one-year consecutive for the weapons prohibition breach, and one-year consecutive for the drug offence for a global sentence of six years. From this six-year sentence, the appellant received Summers credit of 660 days and Duncan credit for 107 days for a total deduction of 767 days from the global sentence: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Duncan, 2016 ONCA 754.

Discussion

A. The Timing of the Guilty Plea

[7] The appellant argues that the sentencing judge erred in principle when he noted that it was an aggravating factor that “there was a preliminary hearing before the [appellant] eventually entered into guilty pleas”. The appellant submits that this error deprived the appellant of substantial credit for pleading guilty in the sentencing process.

[8] We agree with the appellant that the sentencing judge erred in considering the timing of the guilty plea to be an aggravating factor: see R. v. Kozy, (1990), 74 O.R. (2d) 545 (Ont. C.A.), at p. 550; R. v. F. (J.), 2011 ONCA 220, 105 O.R. (3d) 161, at para. 84, aff’d on other grounds, 2013 SCC 12, [2013] 1 S.C.R. 565. The fact that a preliminary hearing had been held before the appellant pleaded guilty should not have been treated as an aggravating factor.

[9] That said, an error in principle, the failure to consider a relevant factor, or the erroneous consideration of an aggravating factor will only justify appellate intervention if it appears from the sentencing judge’s decision that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

[10] In our view, appellate intervention is not justified in this case. The timing of the guilty plea was not central in the sentencing judge’s assessment on sentence. It was only one of several aggravating factors noted by the sentencing judge. The sentencing judge focused on the fact that the appellant had received a serious previous sentence in 2017 for possession of a restricted weapon with a prohibition from the possession of firearms and the appellant was “oblivious to the peril that he would face if again apprehended for similar offences.” The sentencing judge quite properly concluded that “[p]ossessing a firearm while selling drugs is a recipe for death or injury to the [appellant], unsuspecting buyers of drugs, criminals that are intent on depriving the [appellant] of money or drugs, or the public who may unwittingly be present when the potential mayhem begins.”

[11] In light of the seriousness of the offence involving a firearm; the appellant’s previous record; the possession of a significant amount drugs for trafficking; and the possession of a firearm in breach of the outstanding weapons prohibition, we cannot say that the trial judge’s error impacted the sentence he ultimately imposed. We would not give effect to this ground of appeal.

B. The Appellant’s Rehabilitative Potential

[12] The appellant argues that the sentencing judge did not address the appellant’s rehabilitative potential, which was addressed in materials filed during the hearing. We disagree. The sentencing judge referenced the pre-sentence report and a letter from the appellant’s father that addressed the appellant’s potential to rehabilitate himself. In his reasons, the sentencing judge also listed several mitigating factors. However, he noted that “[e]ach gun case turns frankly on its own offence specific and offender specific facts,” but that the paramount consideration was deterrence and denunciation. We see no basis to interfere with his assessment and balancing of the relevant principles. This ground of appeal must fail.

Disposition

[13] For these reasons, leave to appeal sentence is granted but the appeal is dismissed.

“E.E. Gillese J.A.”

“David Brown J.A.”

“S. Coroza J.A.”

[1] The appellant’s counsel advised during oral argument that the appellant was abandoning the other two grounds of appeal raised in the factum, as well as the fresh evidence application.