Court of Appeal for Ontario

Date: 2022-09-16 Docket: C70162

Before: Trotter, Thorburn and Favreau JJ.A.

Between: His Majesty the King, Respondent and Nigel Jordan, Appellant

Counsel: Nigel Jordan, appearing by video conference Joseph Wilkinson, appearing as duty counsel Erica Whitford, for the respondent

Heard: September 7, 2022

On appeal from the sentence imposed on August 27, 2021, by Justice Marquis S. Felix of the Ontario Court of Justice, sitting without a jury, with reasons reported at 2021 ONCJ 460.

Reasons for Decision

[1] The appellant pleaded guilty to three charges of failing to comply with a long-term supervision order. He was sentenced to three years of incarceration, less 212 days for pre-trial custody and 50 days of enhanced credit for COVID-19 conditions.

[2] The appellant argues that his sentence was too long, given that there was no violence involved in the commission of the offences.

[3] We see no errors in the sentencing judge’s decision.

[4] In 2017, Tuck-Jackson J. of the Ontario Court of Justice, made a seven-year long-term supervision order. The order was made based on the appellant’s lengthy criminal record, which includes a long history of violence and threats against intimate partners, including the complainant in this case, and of breaching probation and other court orders.

[5] In 2021, the appellant pleaded guilty to three breaches of the long-term supervision order. The breaches occurred on the same day in 2020. On that day, the complainant contacted the appellant to discuss a situation involving their 14-year-old son. The appellant then attended the complainant’s apartment unannounced. Later in the afternoon, the complainant and the appellant had an argument, and the complainant called the police. When the police arrived, the complainant was distraught and displayed signs of injury, but she would not allow photos of her injuries to be taken.

[6] Based on an agreed statement of facts detailing these circumstances, the appellant pleaded guilty to breaching the long-term supervision order by 1) failing to comply with a requirement that he not enter a defined geographic area in Toronto which included the complainant’s residence, 2) failing to comply with a requirement that he have no contact with the complainant without her written agreement and without the written permission of his probation officer, and 3) failing to reside at his approved residence on the day of the offence.

[7] In his decision, the sentencing judge noted that the Crown sought a custodial sentence of three years while the appellant proposed a suspended sentence and probation. The sentencing judge then stated that, in his view a penitentiary sentence of four years would be appropriate. However, he decided to impose a sentence of three years given the specific circumstances in this case, including that there was some evidence of rehabilitation from the appellant’s probation officer, that the appellant pled guilty and that the complainant appeared to be reluctant to testify.

[8] On appeal, duty counsel, on behalf of the appellant, submitted that the sentencing judge erred in starting with the proposition that a fit sentence was four years, given that this was longer than the three-year sentence proposed by the Crown. He argued that this was an error in principle because the appellant was not given an opportunity to make submissions on a four-year sentence. In our view, the sentencing judge made no error. The sentencing judge did not impose a sentence above the sentence proposed by the Crown. Rather, he imposed the sentence of three years proposed by the Crown, with reductions to reflect pre-sentencing credits. In the circumstances, the sentencing judge was not required to give the parties an opportunity to make additional submissions. There is also no evidence of specific additional submissions the appellant would have made that would have affected the sentence. Notably, the sentencing judge recognized that, in accordance with the decisions of this court in R. v. Mohiadin, 2021 ONCA 122 and R. v. Blake-Samuels, 2021 ONCA 77, 69 C.R. (7th) 274, he would have been required to give the parties an opportunity to make submissions if he had imposed a sentence higher than three years.

[9] Duty counsel also argued that the sentencing judge overemphasized the need for an exemplary sentence in this case, especially given that the offences did not involve any violence. Again, the sentencing judge did not commit any error. The sentencing judge’s statement that the circumstances of the case justify an exemplary sentence must be read in context. In his comprehensive reasons, the sentencing judge reviewed the legal principles articulated by the Supreme Court of Canada in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, regarding the appropriate sentence for breach of a long-term supervision order. He also reviewed in detail the mitigating and aggravating circumstances of the appellant and the offences in this case. In his conclusion, the sentencing judge emphasized some of the aggravating circumstances, including that one of the objects of the long-term supervision order was to protect the complainant and that the breaches went to the core of that purpose. He also noted that the appellant’s conduct undermined his relationship of trust with his probation officer. It is in this context that the trial judge stated that “[t]hese circumstances are highly aggravating and call for an exemplary sentence”. However, looking at the reasons as a whole, it is evident that, while the sentencing judge emphasized the need for an exemplary sentence in his conclusion, he did so after taking into account all of the circumstances of the case, including the mitigating circumstances.

[10] Ultimately, the role of this court on a sentence appeal is to determine whether the sentencing judge imposed a fit sentence: R. v. Parranto, 2021 SCC 46; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Shropshire, [1995] 4 S.C.R. 227. The appellant has not established that the sentence imposed in this case was unfit.

[11] The appeal is dismissed.

“Gary Trotter J.A.”

“J.A. Thorburn J.A.”

“L. Favreau J.A.”