Court of Appeal for Ontario

Date: 20220329 Docket: C69759

Pepall, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Paul Hinds Appellant

Counsel: Talman W. Rodocker, for the appellant Rebecca De Filippis, for the respondent

Heard: in writing

On appeal from the sentence imposed on July 8, 2021, by Justice Karey Katzsch of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant seeks leave to appeal his sentence and if leave is granted, he appeals his sentence of six months' custody. He asks this court to impose the joint submission crafted by counsel.

[2] The appellant was arrested in January 2021 for possession of a stolen car in Kitchener. At the time of his arrest, he was already in custody for a number of other property-related offences committed in Peel (the "Brampton charges").

[3] The appellant pleaded guilty to the Brampton charges on June 22, 2021. Following a joint submission, the appellant was sentenced to 18 months' custody, less time served, for a remaining sentence of 65 days in custody.

[4] On July 8, 2021, the appellant pleaded guilty to the Kitchener charge. At the appellant's guilty plea on the Kitchener charge, the Crown and the defence presented a joint submission of "six months pre-sentence custody", to be served concurrently with the sentence imposed on the Brampton charges. The reasoning behind the joint submission was that the charge of possession of stolen property could have been waived over to Brampton and be globally resolved. Accordingly, the parties agreed the sentence on the possession of stolen property count should not extend the appellant's time in custody beyond the time remaining on the other sentence, which was approximately 48 days.

[5] At the time of the Kitchener guilty plea, the appellant's counsel told the sentencing judge: "we're asking [the sentence] to run concurrent to the sentence imposed two weeks ago in Brampton." Counsel explained, by way of background to the joint submission, that had the Kitchener charge been waived to Brampton for resolution, it would have been part of a global resolution. As the Crown explained, "instead of waiving the Kitchener charges over to Brampton, the idea was to ask for a concurrent sentence to achieve the same goal."

[6] The Crown had agreed to the joint submission of "time served", as it took into account six months' pre-sentence custody.

[7] The sentencing judge accepted that the joint position was reasonable. However, instead of imposing the joint submission of time served, the sentencing judge imposed six months’ "real" custody. At the time of sentencing, the trial judge stated: "the sentence will reflect six months in custody, to be noted as concurrent to any sentence that he is currently serving." The sentencing judge told the appellant that his sentence was "a further six months, but it will run concurrently with your 18 month sentence." This was an inadvertent error on the part of the sentencing judge.

[8] On August 13, 2021, the parties returned in front of the sentencing judge to request that the sentence be amended. Counsel explained that the sentence on the Kitchener charge factored in the sentence on the Brampton charges, and that the joint submission was for six months' pre-sentence custody, not six months' real custody. The Crown confirmed that "it was the intention of the Crown to run this matter concurrently to the Brampton charges […] he only had about 65 days served when he was sentenced with Your Honour so it wouldn't make sense that he would get a six-month concurrent sentence…."

[9] The sentencing judge found that she was functus officio and therefore declined to amend the sentence. As a result, the appellant now appeals his sentence.

[10] We agree that the appeal should be allowed. The Crown acknowledges that the parties agreed to present a joint submission on sentence that would replicate a global resolution with the Brampton charges. The parties chose to achieve this goal by advancing a joint submission of six months' pre-sentence custody (presumably plus "one day") so that the appellant would not remain in custody beyond the completion of the sentence on the Brampton charges.

[11] In the normal course, a trial judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute or it is otherwise contrary to the public interest.

[12] The sentencing judge appears to have been under the mistaken impression that the joint submission was for six months' real custody. The confusion appears to have arisen from counsel's request that the sentence run concurrent to the Brampton sentence. As a result, the sentencing judge imposed a sentence that deviates from the intended joint submission. Both parties agree that this was an error in principle that warrants appellate intervention.

[13] Accordingly, leave to appeal sentence is granted. The sentence appeal is allowed. The sentence imposed is hereby vacated, and a sentence of time served, plus one day, concurrent to the previous sentence imposed on the Brampton charge is now imposed. However, in light of the circumstances, we are exercising our discretion to stay the execution of the one-day concurrent sentence. As such, there is no need for the appellant to surrender into custody.

“S.E. Pepall J.A.”

“M. Tulloch J.A.”

“Grant Huscroft J.A.”