Court of Appeal for Ontario

Date: 20231110 Docket: C63674

Lauwers, Favreau and Copeland JJ.A.

Between:

His Majesty the King Respondent

And

Thavanathan Sithravel Appellant

Counsel: Richard Litkowski, for the appellant Katie Doherty, for the respondent

Heard: November 3, 2023

On appeal from the sentence imposed on July 16, 2015 by Justice John B. McMahon of the Superior Court of Justice.

Reasons for Decision

Introduction

[1] The appellant pled guilty to one count of robbery and was sentenced to nine years imprisonment. The offence was a carefully planned, violent robbery of a jewellery store with an imitation firearm. The appellant was not one of the assailants when the robbery was carried out, but participated in the planning of the offence and was to be the fence for the proceeds of the robbery.

[2] The appellant appeals from the nine-year sentence imposed and argued that the sentence should have been no more than eight years based on the parity principle.

[3] The appellant absconded between the date the guilty plea was entered and the date of the sentencing hearing. As a result, the sentencing proceeded in absentia. Both grounds of appeal raised by the appellant regarding the length of his sentence are linked to the fact that he absconded. One ground relates to the treatment of his absconding as a factor in sentencing. The other, at least in part, arose from the fact that he absconded, resulting in the sentencing judge not having the benefit of defence submissions.

No error in treatment of absconding as a factor in sentencing

[4] Because it can be addressed briefly, we address first the appellant’s submission that the sentencing judge erred in treating the fact that he absconded as an aggravating factor. He argues that doing so is an error in principle, relying on R. v. Singh, 2015 ONSC 904, at para. 19.

[5] It is not necessary in this appeal to decide whether, in some circumstances, absconding may be treated as an aggravating factor on sentence. In this case, the use made by the sentencing judge of the fact that the appellant absconded was more nuanced than that. Although the sentencing judge used the phrase “aggravating factors” at the start of the paragraph where he considered the appellant’s role in the offence and the impact of his absconding, the whole of his analysis shows that his use of the absconding was more tailored. The sentencing judge explained the use as follows:

Further, when looking at individual deterrence, [the appellant], in the evidence that I accepted this morning has fled the jurisdiction, as opposed to taking responsibility for his actions, which is a positive step when looking at rehabilitation and reintegration into the community. Individual deterrence, therefore, also becomes more paramount.

This passage makes clear that the sentencing judge did not treat absconding as an aggravating factor, but rather found it was a factor that diminished the taking of responsibility from the guilty plea, negatively impacted the appellant’s prospects for rehabilitation, and increased the weight to be given to specific deterrence. There is no error in these uses: R. v. P.M., 2022 ONCA 408, at para. 22; Singh, at para. 19.

Error in relying on a fact not admitted as an aggravating factor

[6] The nub of the second ground of appeal is that the sentencing judge relied on the appellant being the “mastermind” of the robbery as a significant aggravating factor. The appellant argues that this constituted an error in principle because he did not admit this as part of the facts in support of the guilty plea and it was not proven by the Crown beyond a reasonable doubt in a Gardiner hearing: R. v. Gardiner, [1982] 2 S.C.R. 368.

[7] Some context of the guilty plea proceedings and the appellant absconding is helpful to understand this ground of appeal.

[8] The appellant pled guilty in January 2015. I pause to note that defence counsel and Crown counsel below are not counsel on appeal. Before the plea inquiry and the arraignment, counsel for the appellant noted that he would have some “comments” regarding the facts in support of the plea. The sentencing judge then conducted the plea inquiry. As part of the plea inquiry, the sentencing judge, quite properly, drew to the appellant’s attention that the Crown would read in “what she says happened.” He then explained to the appellant: “[Y]ou can only admit to things that are true and things that actually happened. You cannot admit to facts that you believe are not true just to get the case over with or because you like the deal being offered by the Crown Attorney.” The appellant said he understood. He was then arraigned and pled guilty to one count of robbery. We note, for sake of completeness, that during the plea inquiry counsel advised the trial judge that there was not a joint submission as to sentence.

[9] Before the facts were read in by Crown counsel, the sentencing judge, again quite appropriately, told the appellant to listen carefully to what the Crown said because he would ask the appellant afterwards “if that’s what happened.” The Crown then read in a set of facts regarding the planning and execution of the robbery. We focus on the aspect of the read-in facts where the Crown alleged that the appellant “came up with the idea” to rob the jewellery store, attended two meetings to plan the robbery, and engaged in various acts of planning which, if admitted, could be the basis to find that he took the lead in planning the robbery.

[10] Once the facts were read in, the sentencing judge asked if the facts as read in were “substantially correct.” Defence counsel then stated that he had “a number of qualifications.” The sentencing judge told the appellant to listen to what defence counsel had to say and anything the Crown said in response and that, after that, he would ask the appellant “if that’s what happened.” Defence counsel then said that the appellant admitted to being at both meetings, but denied being the person who called the meeting. Counsel explained that the appellant said it was another one of the co-accused who called the meeting, and that it was the co-accused’s idea. After an intervention by the appellant, defence counsel clarified that the appellant only admitted to being at the second meeting and his role was to be the fence for the proceeds. There was then a lengthy back and forth where defence counsel said that the appellant denied various other aspects of the facts read in. We will not summarize all of the disputed areas – but all involved downplaying the appellant’s role in the robbery and its planning.

[11] It is clear from the transcript there was some discussion between counsel prior to court about the fact that the defence would be qualifying some of the facts the Crown sought to have admitted. However, it is also clear that many of the facts that the appellant was not prepared to admit during the hearing had not been discussed with Crown counsel prior to the plea. Crown counsel made clear on the record that she was not satisfied with all of the qualifications that the appellant sought to place on the plea. However, at no point did Crown counsel take the position that she was not prepared to proceed with the resolution on a more limited factual basis. [1]

[12] The sentencing judge interceded at various points to ensure that the appellant was prepared to admit the elements of the offence and to suggest that, if the appellant was prepared to admit the essential elements of the offence, a Gardiner hearing could be held regarding additional aggravating factors.

[13] Ultimately, what was clearly admitted by the appellant was that he participated in the planning of the robbery and was going to be the fence for the proceeds of the robbery. On this basis, the sentencing judge found the appellant guilty. Crown counsel stated, in accordance with the suggestion of the sentencing judge, that she intended to call evidence at the sentencing hearing to prove other facts that the appellant disputed.

[14] When the matter returned to court in late March 2015, the appellant did not appear. A bench warrant was issued, and the appellant’s bail was revoked and marked for estreatment. His counsel requested to be, and was, removed from the record. The matter was adjourned to a date in July 2015 for the sentencing hearing.

[15] When the matter returned to court in July 2015, the appellant again did not appear. The Crown applied to have the sentencing proceed in absentia, pursuant to s. 475 of the Criminal Code of Canada, R.S.C., 1985, c. C-46. The Crown led evidence about the inquiries made by police to locate the appellant, which established that he had fled to Sri Lanka in late March 2015. Based on that evidence, the sentencing judge found that the appellant had absconded and that it was in the interests of justice to proceed with the sentencing hearing in absentia. The decision to proceed in absentia is not challenged on appeal.

[16] The sentencing hearing then proceeded. No Gardiner hearing was held. There was no discussion on the record on the date of the sentencing hearing as to why the Gardiner hearing discussed at the time the plea was entered was not held. We can only infer that it was overlooked due to the passage of time and the focus on the fact that the appellant had absconded. At that point, it was six months after the plea had been entered. Further, Crown counsel’s submissions did not draw the sentencing judge’s attention to the fact that the appellant had not admitted all of the facts read in by the Crown during the plea hearing. In fact, in her sentencing submissions, Crown counsel relied on the facts as set out in what she referred to as the “agreed statement of fact that [the appellant]” pled guilty to without referring to any of the qualifications placed on the facts when the plea was entered or the discussion at the time of the plea of a Gardiner hearing. In particular, Crown counsel in her submissions referred to the appellant admitting that he was “the brains behind putting this together” and that “he’s the one who came up with the idea” to rob the jewellery store.

[17] In the reasons for sentence, the sentencing judge relied on as a central aggravating factor that the appellant was the “mastermind” of the robbery. Two passages from the reasons for sentence make this clear:

It is an admitted fact that [the appellant] was the mastermind of a well-planned, well-executed, sophisticated, violent robbery of a jewellery store.

There are two additional aggravating factors I find in relation to [the appellant]. First, on the admitted facts he is the mastermind. He is the one who set it up, recruited the individuals, and planned it. He did not get his fingers dirty in the actual robbery, but he was there before, planned it, and was there after. I find this to be an extremely aggravating factor that is somewhat different and more morally culpable than those who actually did the robbery.

[18] Unfortunately, the transcript of the guilty plea shows that the appellant did not admit that he was the mastermind of the robbery. As outlined above, he specifically denied that the robbery was his idea. This is not just an issue of semantics. Although the appellant admitted that he was a party to the robbery based on his involvement in the planning and that he would act as the fence for the proceeds, throughout the guilty plea proceedings he sought to downplay his role in the planning.

[19] The Crown argues on appeal that the appellant admitted sufficient facts that the sentencing judge was entitled to characterize his role as “the mastermind” of the robbery. This argument relies on reading the transcript of the guilty plea as the appellant admitting every fact read in by the Crown that was not specifically denied or qualified. While some guilty plea transcripts may be clear enough to support such an argument, this one is not. The guilty plea proceedings in this case cannot bear this reading. The appellant (or his counsel) never specifically agreed to or admitted that all of the facts read in by the Crown were substantially correct. As noted above, the appellant specifically denied, through counsel, that the robbery was his idea. The various qualifications he sought to put on the facts read in by the Crown attempted to downplay his role in the robbery. The responses to the interventions by the sentencing judge to ensure that the elements of the offence were admitted make clear that the appellant admitted to his involvement in the planning of the robbery and that it was intended he would be the fence for the proceeds. However, it was clear that further aggravating factors were left for a Gardiner hearing.

[20] The sentencing judge erred in principle by treating as an aggravating factor that the appellant admitted that he was the “mastermind” of the robbery plan when the appellant had not admitted this fact and had specifically denied that the robbery was his idea.

[21] The finding of an error in principle does not end the matter. An appellate court may only intervene in a sentence appeal based on an error in principle where the error had an impact on the sentence: R. v. Lacasse, [2015] 3 S.C.R. 1089, 2015 SCC 64, para. 44.

[22] In our view, the sentencing judge’s error in relying on, as an aggravating factor, that the appellant admitted that he was the mastermind of the robbery had an impact on the sentence imposed. This is clear from the reasons for sentence, particularly when read in the context of the position taken by the Crown before the sentencing judge. The Crown sought an eight-year sentence for the appellant on the basis of parity. The two perpetrators whose situations were most similar to the appellant – and who, like the appellant, pled guilty and had no criminal record – received sentences of eight years and eight and a half years. The higher sentence was imposed on the perpetrator who had wielded the imitation firearm during the robbery. In considering the Crown’s position, the sentencing judge discussed the importance of the parity principle. However, he found that a higher sentence was warranted for the appellant based on his degree of culpability because he was the mastermind and because of the impact of his absconding (discussed above). As noted in the excerpt from the sentencing reasons above, he characterized the appellant’s role as the mastermind as “an extremely aggravating factor” which made him “more morally culpable” than those who carried out the robbery. In our view, the reasons make clear that the sentencing judge viewed the appellant being the mastermind of the robbery as the primary factor that warranted departing from parity and giving the appellant a higher sentence.

[23] In his factum, the appellant sought a reduction in sentence from nine years to eight years, if this court found both errors. In oral submissions, in response to a question from the court, counsel took the position that if the court only found an error in relation to the appellant being the mastermind of the robbery, the sentence should be reduced by nine months, as that was the primary factor that led the sentencing judge to impose a higher sentence on the appellant than on the other parties to the robbery. We agree. A sentence of eight years and three months is appropriate in terms of parity with the other perpetrators of the robbery whose situations were most similar to the appellant, but also taking into account the diminished mitigation as a result of the appellant absconding.

[24] Some may feel an understandable sense of frustration in the appellant’s sentence appeal being allowed when he chose to abscond and not be present for the sentencing hearing. Had he been present, one expects his counsel would have drawn the sentencing judge’s attention to issues regarding facts not admitted or insisted on the Gardiner hearing which had been discussed at the time the plea was entered. However, the fact that the appellant absconded could not change the facts that were and were not admitted when the guilty plea was entered or the onus on the Crown, if it wanted to rely on additional facts in aggravation, to prove them beyond a reasonable doubt in a Gardiner hearing.

[25] Before closing, we wish to comment on the unsatisfactory manner in which the facts in support of the guilty plea were dealt with by counsel at the time the plea was entered. Because counsel had not agreed on all of the qualifications that were to be placed on the facts the Crown sought to have admitted prior to the entry of the plea, the facts in support of the plea proceeded, effectively, as a negation on the record at the time the plea was taken.

[26] An accused person who pleads guilty is, of course, not bound to admit all of the facts that the Crown seeks to have admitted in support of the guilty plea. We recognize that in busy plea courts, guilty pleas often proceed based on a police synopsis rather than a formal agreed statement of facts. Sometimes synopses are aspirational in terms of the facts the Crown can prove. There is nothing wrong with an accused person not admitting all of the facts the Crown seeks to have admitted or putting qualifications on the facts to be admitted (provided the facts admitted make out the elements of the offence). However, the details of the facts to be admitted should be sorted out by counsel before the plea is entered, both as a matter of clarity of the facts admitted in support of a guilty plea and efficient use of court time.

[27] The facts admitted in support of a guilty plea are important. An accused who admits facts in support of a plea is giving up their right to require the Crown to prove the facts establishing the offence and, in many cases, to prove aggravating factors: Gardiner; Criminal Code, s. 724(3)(e). Lack of clarity as to what facts are admitted in support of a guilty plea can, as in this case, generate errors in relation to factors relied on as aggravating or mitigating and create difficulties in ascertaining the factual record for appellate review.

Disposition

[28] Leave to appeal sentence is granted, the sentence appeal is allowed, and the sentence reduced to eight years and three months.

“P. Lauwers J.A.”

“L. Favreau J.A.”

“J. Copeland J.A.”

[1] We do not suggest that the Crown is always entitled to refuse to accept a guilty plea if it is not satisfied with the facts that the accused is prepared to admit. However, in this case, it is clear that there was a negotiated element to the resolution, as the appellant only pled guilty to one of the two counts against him in the Indictment, and the Crown withdrew the other count.