Court of Appeal for Ontario

Date: 2024-04-12 Docket: COA-23-CR-1301

Judges: Benotto, Coroza and Dawe JJ.A.

Between: His Majesty the King, Respondent and Christopher Briscoe, Appellant

Counsel: Christopher Briscoe, acting in person Nicholas Hay, for the respondent

Heard: April 8, 2024

On appeal from the sentence imposed on September 22, 2023 by Justice Maureen Forestell of the Superior Court of Justice.

Reasons for Decision

[1] The appellant pleaded guilty to two counts of robbery. The sentencing judge accepted a joint submission on sentence of two years’ less a day imprisonment, in addition to presentence custody of 120 days, credited as 180 days.

[2] The appellant was represented by counsel before the sentencing judge. Counsel placed an agreed statement of facts before the sentencing judge.

[3] According to the agreed statement of facts, the appellant committed two violent robberies at two separate jewellery stores in Toronto. In both cases, he entered the store, and asked to see expensive watches. He then sprayed employees with bear spray, stole watches, and fled the store. In his first robbery, the appellant sprayed a security guard and two employees before stealing $500,000 worth of watches. In his second robbery, he sprayed the store proprietor and then stole $1,000,000 worth of watches.

[4] The appellant argues that his sentence should be reduced because he is remorseful and is determined to better himself and work to help his sick mother and young children. He also argues that he deserves a lower sentence because he did not plan the robberies, but merely carried them out at the insistence of a co-accused: Kyle Francis. Mr. Francis was also convicted of robbery, and sentenced to twenty-one months’ imprisonment: see R. v. Francis, 2023 ONSC 4780. The appellant contends that it is unfair that he received a longer sentence than Mr. Francis, the apparent mastermind of the robberies.

[5] The joint submission accepted by the sentencing judge was the product of pretrial discussions between counsel. The experienced sentencing judge was aware of the circumstances of the offences, the strengths and weaknesses of the Crown’s case, and the circumstances of the appellant. In the end, the sentencing judge concluded that the proposed would not bring the administration of justice into disrepute, was not contrary to the public interest, and was consistent with the applicable sentencing principles. Under these circumstances, the sentencing judge was required to accept the joint submission: see R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204.

[6] Nor is there any basis in the record to conclude that the sentencing judge failed to consider the principle of parity. Notably, the joint submission on sentence did not extend to an agreement on a fine in lieu of forfeiture. The Crown requested that the appellant be fined in the amount of $750,000. The sentencing judge declined to impose the fine, noting that another judge declined to impose a fine in lieu of forfeiture on Mr. Francis. The sentencing judge expressly recognized that the principle of parity called for Mr. Briscoe to receive similar treatment to Mr. Francis.

[7] The principle of parity does not require that sentences imposed on co-accused always be the same: see R. v. Pearce, 2021 ONCA 239, 71 C.R. (7th) 328. The roles Mr. Francis and the appellant played in the robberies were different. While Mr. Francis’s apparent planning of the robberies can be seen as increasing his moral culpability on one axis of measurement, the appellant’s use of violence in carrying out the robberies was aggravating on a different axis. Given the length of the sentence imposed on the appellant exceeded the sentence imposed on Mr. Francis by only three months, and given that no fine was imposed on the appellant, we are of the view that there was no substantial disparity between the sentence imposed on the appellant and Mr. Francis.

[8] While the appellant is to be commended for his continued expressions of remorse, we see no basis for appellate interference in this sentence – a sentence that the appellant, through counsel, agreed to below. Leave to appeal the sentence is granted but the appeal is dismissed.

“M.L. Benotto J.A.”

“S. Coroza J.A.”

“J. Dawe J.A.”