Court of Appeal for Ontario

Date: 20240208 Docket: COA-23-CR-0928

Before: Fairburn A.C.J.O., Rouleau and Trotter JJ.A.

Between: His Majesty the King Respondent

And: Joseph Hodgkin Appellant

Counsel: Joseph Hodgkin, acting in person Dan Stein, appearing as duty counsel Avene Derwa, for the respondent

Heard and released orally: February 6, 2024

On appeal from the sentence imposed by Justice Kelly C. Tranquilli of the Superior Court of Justice on May 17, 2023.

Reasons for Decision

[1] The appellant pled guilty to accessory after the fact to murder. The sentencing reasons speak for themselves, and there is no need to repeat the horrific circumstances around the disposal and, later, discovery of the deceased’s body.

[2] The sentencing judge’s reasons are thorough and reflect a careful and thoughtful review of the appellant’s circumstances, as well as the seriousness of the crime. Even so, as the Crown respondent acknowledges, the reasons contain an error in principle, specifically that the sentencing judge failed to take R. v. Gladue, [1999] 1 S.C.R. 688 principles into account. Despite this error, the Crown respondent says that the sentence would have been the same even if the sentencing judge had applied Gladue principles. We agree.

[3] The defence counsel waived a Gladue report, instead content to rely on a presentence report where Gladue was addressed. During submissions on sentence, defence counsel said he would not be emphasizing Gladue, given that it was unclear how these principles would apply to this case.

[4] In our view, the reasons for sentence adequately addressed the appellant’s background and, specifically, they acknowledged the appellant’s Indigeneity. Taken in its full context, having regard to all of the circumstances, we are satisfied that this sentence would have been the same had the trial judge conducted a specific Gladue analysis.

[5] We wish to acknowledge that the appellant appears to be doing very well at the Ontario Correctional Institute, and we commend him for his efforts toward rehabilitation.

[6] The warrant of committal in this case appears to contain an error, in that the Long-Term Offender (“LTO”) box is ticked. The parties agree that there was no LTO finding in this matter. The warrant of committal in this case should be corrected.

[7] Leave to appeal sentence is granted. The appeal is dismissed.

“Fairburn A.C.J.O.”

“Paul Rouleau J.A.”

“G.T. Trotter J.A.”