Corrected decision: The text of the original judgment was corrected on November 2, 2023, and the description of the correction is appended.

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20231026 DOCKET: COA-22-CR-0061

Miller, Paciocco and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Thomas Lush Appellant

Counsel: Gabriel Gross-Stein, for the appellant Benjamin Lerer, for the respondent

Heard and released orally: October 25, 2023

On appeal from the sentence imposed on July 6, 2022 by Justice Gethin B. Edward of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant pleaded guilty to several counts of property related offences.

[2] The conviction appeal is dismissed as abandoned.

[3] With respect to the sentence appeal, the Crown and defence had agreed on a sentence of 2 years less a day, but did not agree on the application of Duncan credit. The sentencing judge jumped the submission to impose a sentence of 2 years and 3 months, on the expectation it would aid in the appellant’s rehabilitation. The sentencing judge did not advise the parties that he was contemplating this increase and did not invite submissions on the proposed increase. The Crown concedes that this was an error per R. v. Nahanee, 2022 SCC 37, 418 C.C.C. (3d) 417, at paras. 44-50.

[4] We agree that the sentencing judge erred in jumping the sentencing position of the parties without inviting submissions, and are satisfied that the error affected the sentence.

[5] The appeal against sentence is allowed and the global sentence reduced to 2 years less one day. In accordance with the proposal of the appellant, on information 213151 count 4, the sentence is reduced to 2 months and 29 days consecutive, and on count 5 the sentence is varied to 3 months concurrent.

“B.W. Miller J.A.”

“David M. Paciocco J.A.”

“S. Coroza J.A.”

Erratum

Correction made on November 2, 2023: at para. 5, “count 1” was changed to “count 4”.