Court and Case Information

COURT OF APPEAL FOR ONTARIO DATE: 20221014 DOCKET: C70014

Before: Tulloch, van Rensburg and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Jamal Nercessian Appellant

Counsel Information

Counsel: Jamal Nercessian, acting in person Scott Cowan, appearing as duty counsel Jeffrey Wyngaarden, for the respondent

Heard and released orally: October 4, 2022

Appeal Details

On appeal from the sentence imposed on August 24, 2021, by Justice Harvey P. Brownstone of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant pleaded guilty to seven offences and received a global sentence of 29 months in addition to pre-sentence custody pursuant to a joint submission.

[2] The appellant seeks leave to appeal his sentence. His main complaint is that his defence counsel did not bring to the attention of the sentencing judge that he was Indigenous, and consequently the sentencing judge failed to take into account his background and apply the principles set out in R. v. Gladue, [1999] 1 S.C.R. 688.

[3] The appellant also seeks to rely on fresh evidence of the programming that he has taken while in custody. The Crown does not oppose the admission of the fresh evidence. We have reviewed the fresh evidence. It reflects the appellant’s progress in programs he has participated in and his participation in Indigenous programming.

[4] While we would grant leave to appeal, we would nevertheless dismiss the appeal.

[5] We do not accept the appellant’s argument that the trial judge erred by failing to take into account his Indigenous background.

[6] There is nothing on the record that would suggest that the trial judge was made aware, knew, or was required to inquire into the appellant’s claim that he was Indigenous.

[7] While there was no plea inquiry, the sentencing judge did confirm that the plea was voluntary.

[8] Nor do we accept the submission that trial counsel failed in her duties to put this information before the trial judge. In the absence of an ineffective assistance of counsel ground of appeal, it would be inappropriate for us to consider this submission.

[9] Finally, while duty counsel has raised concerns about the brevity of the plea proceedings, as we read the record, the plea proceeded after a crown pre-trial and was presented to the sentencing judge as a joint submission. We see no error in the trial judge accepting the joint submission or in the way the proceeding was conducted.

[10] While we would admit the fresh evidence, absent any error in principle it does not affect the result.

[11] However, the appellant is to be commended for his efforts in rehabilitation, with respect to remaining sober, and his continued embracing of his Indigenous background. We commend the appellant for his efforts and encourage him to continue with his programming.

[12] For these reasons, the appeal is dismissed.

“M. Tulloch J.A.” “K. van Rensburg J.A.” “S. Coroza J.A.”