Court of Appeal for Ontario

Date: 20230511 Docket: COA-22-CR-0434

Benotto, Miller and Paciocco JJ.A.

BETWEEN

His Majesty the King Respondent

and

Nathaniel Tulloch Appellant

Counsel: Kimberly Miles, for the appellant Stephanie A. Lewis, for the respondent

Heard: In-Writing

On appeal from the sentence entered by Justice Michelle Fuerst of the Superior Court of Justice on April 7, 2022.

By the Court:

Overview

[1] The appellant pleaded guilty to robbery with an imitation firearm, robbery and use of an imitation firearm. The facts underlying the offences were read into the record on the guilty plea as an agreed statement of fact. The parties presented a joint submission on sentence that imposed a custodial term of 1460 days less 192 days pre-sentence custody, enhanced to 288, resulting in a remaining sentence of 1172 days in jail on all three counts to be served concurrently.

[2] It was the intention of the Crown and the defence that the sentence of 1460 days less time served be imposed as a global sentence for all three offences.

[3] Fuerst J. gave reasons for sentence outlining the aggravating factors: the appellant had robbed vulnerable employees in convenience stores, used what appeared to be a gun, threatened one employee with death, had a prior conviction for similar offences and was bound by a firearms prohibition order. She also considered as mitigating factors his guilty plea, his compliance with pre-trial bail conditions, his family support and that he would be stepping into custody during the pandemic. Ultimately, she accepted the joint submission.

The Error

[4] Several months after sentencing, Correctional Services Canada brought s. 85 to the attention of the sentencing judge.

[5] Section 85 of the Criminal Code provides:

Using firearm in commission of offence

85 (1) Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm,

(a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder), 244 (discharging firearm with intent), 244.2 (discharging firearm — recklessness), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage taking), 344 (robbery) or 346 (extortion);

(b) while attempting to commit an indictable offence; or

(c) during flight after committing or attempting to commit an indictable offence.

Using imitation firearm in commission of offence

(2) Every person commits an offence who uses an imitation firearm

(a) while committing an indictable offence,

(b) while attempting to commit an indictable offence, or

(c) during flight after committing or attempting to commit an indictable offence,

whether or not the person causes or means to cause bodily harm to any person as a result of using the imitation firearm.

Punishment

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years.

Sentences to be served consecutively

(4) A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1) or (2). [Emphasis added]

[6] Fuerst J. wrote as follows to Correctional Service Canada:

Regrettably, Crown counsel, defence counsel and I all overlooked s. 85(4) of the Criminal Code, which as [the officer from CSC] points out mandates that the sentence for that offence be served consecutively. It was not the intention of counsel nor was it my intention that [the Appellant] would be sentenced to a global sentence of 8 years in jail less pre-sentence custody, but that is the effect of s. 85(4).

Ultimately the error is mine as the sentencing judge, and I would happily correct it, but I believe that I am functus and so unable to simply adjust the sentence on the various counts to accord with the intention of counsel as to the global sentence, while properly applying s. 85(4).

I expect that the Crown and defence counsel will work together to have the case put before the Court of Appeal as quickly as possible so that it can adjust the sentence so that [the appellant] is not prejudiced by the error, and serves the intended global sentence of 4 years in jail less pre-sentence custody.

[7] Clearly, all parties inadvertently overlooked s. 85(4) of the Criminal Code.

[8] The appellant, supported by the Crown, appeals the sentence.

Decision

[9] In the unique circumstances of this case, we allow the appeal and vary the sentence as follows:

• Count 1 (s. 344(1)(b)): 365 days’ incarceration, less 288 days credit for a remainder of 77 days.
• Count 2 (s. 344(1)(b)): 365 days’ incarceration, less 288 days credit for a remainder of 77 days, concurrent to Count 1.
• Count 3 (s. 85(2)(a)): 1,095 days’ incarceration consecutive.

Released: May 11, 2023 “M.L.B” “M.L. Benotto J.A.” “B.W. Miller J.A.” “David M. Paciocco J.A.”