Court of Appeal for Ontario

Date: 2023-06-12 Docket: COA-23-CR-0040

Before: van Rensburg, Benotto and Copeland JJ.A.

Between: His Majesty the King Respondent

And: Marlin Wilson Appellant

Counsel: Marlin Wilson, acting in person Nicholas Hay, for the respondent

Heard: June 6, 2023

On appeal from the sentence imposed by Regional Senior Justice Paul R. Sweeny of the Superior Court of Justice on December 16, 2022.

Reasons for Decision

[1] The appellant appeals sentence on convictions for possession of a loaded prohibited or restricted firearm, aggravated assault, and possession of a firearm while prohibited. He seeks leave to appeal and, if leave is granted, to appeal sentence.

[2] The appellant’s primary ground of appeal is an argument that the court did not consider his Indigenous roots in assessing sentence, pursuant to R. v. Gladue, [1999] 1 S.C.R. 688.

[3] The record does not support the appellant’s submission.

[4] When the appellant pled guilty to the three offences, the court ordered a Gladue report and adjourned the sentencing hearing.

[5] When the sentencing hearing resumed a number of months later, the agency that had been tasked to prepare the Gladue report sent a letter explaining that it was unable to prepare a report. The agency had investigated the information provided by the appellant about his Indigenous background, including contacting multiple family members, and checking CAS records, archival records, and Band records. However, after thorough investigation, the agency was unable to confirm the appellant’s Indigenous ancestry. For this reason, the agency was unable to prepare a Gladue report for the appellant.

[6] In coming to this conclusion, the agency cautioned that its inability to provide a report did not mean that the appellant was not an Indigenous person or that Gladue factors did not have relevance in his sentencing.

[7] Ultimately, the appellant’s sentencing proceeded as a joint submission. In support of the joint submission, the appellant’s counsel included submissions regarding the appellant’s Indigenous ancestry as a factor relevant to sentencing.

[8] There is no basis in the record to conclude that trial counsel for the Crown and defence failed to consider the appellant’s Indigenous ancestry in arriving at the joint submission.

[9] The facts admitted in support of the guilty pleas involved the appellant and a woman attending at a rented house in relation to a dispute about money. During the course of an argument between the appellant, the woman he attended with, and the two occupants of the house, the appellant produced a handgun and was gesturing with it. The appellant shot one of the occupants of the house in the leg, causing a non-life-threatening injury. At the time of the offence, the appellant was prohibited from possessing a firearm. He had a significant criminal record that included multiple convictions for weapons offences, including a prior conviction for possession of a firearm while prohibited. The joint submission accepted by the trial judge was for six-years imprisonment, less a total of five-years credit for pre-sentence custody and harsh conditions of confinement, leaving one year remaining to be served. In the circumstances, the joint submission was for a lenient sentence, which took into consideration the appellant’s Indigenous background as well as his efforts at rehabilitation.

[10] Trial judges should only reject a joint submission where the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest: R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204. In this case, the trial judge was satisfied that that the joint submission would not bring the administration of justice into disrepute. There is no basis in the record to conclude that the trial judge failed to consider the appellant’s Indigenous ancestry in deciding to accept the joint submission on sentence.

[11] The second issue raised by the appellant was the fact that he contracted COVID-19 while in pre-sentence custody and was subject to lockdown time. The fact that the appellant contracted COVID-19 and was subject to time in lockdown during pre-sentence custody was the subject of evidence and submissions before the trial judge. The trial judge expressly addressed the impact of COVID-19 and lockdowns in his reasons for sentence. This issue provides no basis to vary the appellant’s sentence.

[12] Finally, as part of his submissions on the appeal, the appellant provided the court with copies of certificates for a number of rehabilitative programs that he completed while in custody – both prior to and since his sentencing.

[13] It is clear that the appellant’s efforts at rehabilitation through taking programs available to him in custody, as well as stopping drug use, were considered as a factor in determining the appropriate sentence. Both Crown and defence counsel referred to the appellant’s efforts at rehabilitation while in custody as a mitigating factor in their submissions to the trial judge. The trial judge expressly relied on the appellant’s efforts of taking rehabilitative programs in custody and stopping substance use as factors in accepting the joint submission. Because the appellant’s efforts at rehabilitation were considered in the trial judge’s acceptance of the joint submission, they do not impact on the sentence appeal. However, we acknowledge the appellant’s continuing commitment to rehabilitation as a factor that will support him upon his release from custody.

[14] Leave to appeal sentence is granted, but the appeal is dismissed.

“K. van Rensburg J.A.”

“M.L. Benotto J.A.”

“J. Copeland J.A.”