COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Robinson, 2023 ONCA 205

DATE: 20230324

DOCKET: C 68317

Simmons, Miller and Harvison Young JJ.A.

BETWEEN

His Majesty the King

Respondent

and

Alvin Robinson

Appellant

Jolene Hansell and Howard Krongold, for the appellant

Kristen Mohr, for the respondent

Heard: in writing

On appeal from the sentence imposed by Justice Jean G. Legault of the Ontario Court of Justice on March 16, 2020.

REASONS FOR DECISION

[1] The appellant pleaded guilty to driving with a blood alcohol level over the legal limit; possession of cocaine, heroin and fentanyl for the purpose of trafficking; and three firearm offences. On March 16, 2020, he was sentenced to 10 years' imprisonment less four months’ credit for pre-sentence custody. He seeks leave to appeal his sentence.

[2] The appellant was involved in a single motor vehicle accident in January 2020. He failed a breath test taken at the scene and was arrested for impaired driving. On searching the appellant, the police found 105.5 grams of cocaine, 16.5 grams of crack cocaine, 35 grams of heroin, 56 grams of fentanyl, and a 9 mm handgun with ammunition in the magazine. The appellant was subject to a firearms prohibition at the time.

[3] The appellant raised two issues on appeal. First, he submitted that the sentencing judge erred in applying the totality principle. Second, he submitted that the sentencing judge erred in failing to take account of the impact of the COVID‑19 pandemic on the manner in which his sentence would be served.

[4] Prior to the appeal hearing date, the appellant and the Crown agreed that an 18‑month sentence reduction based on the impact of the COVID‑19 pandemic would be an appropriate disposition of this appeal.

[5] After reviewing the appeal materials and the fresh evidence filed by the appellant, we agreed to accept the parties’ joint proposal and to hear this appeal in writing.

[6] The appellant was sentenced immediately prior to Ontario entering a province‑wide shutdown to reduce the spread of COVID‑19. The potential impacts of the pandemic were unknown at that time. Accordingly, counsel did not make submissions on the issue and the sentencing judge did not address it in his reasons.

[7] In addition to his own affidavit, the appellant filed records from the Correctional Service of Canada as fresh evidence on appeal.

[8] Based on our review of the fresh evidence, we are satisfied that the impact of the COVID‑19 pandemic and the restrictions that were imposed resulted in the appellant experiencing, for a little over two years while incarcerated, significantly harsher conditions than would otherwise have been the case. This does not reduce the appellant’s moral blameworthiness or the seriousness of the crimes that he committed. But it has resulted in the appellant experiencing harsher conditions than were anticipated at the time he was sentenced. Having considered the circumstances of the offences and the offender, in particular his early guilty plea which resulted in the pandemic being an unknown factor at sentencing, we are satisfied that reducing the sentence as proposed will not give rise to an unfit sentence.

[9] In the result, leave to appeal sentence is granted, the appeal is allowed, and the appellant’s sentence of imprisonment is reduced by 18 months. All other terms of the sentence imposed shall remain in full force and effect.

“Janet Simmons J.A.”

“B.W. Miller J.A.”

“A. Harvison Young J.A.”