Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 2024-12-11 DOCKET: COA-24-CR-0222

Before: Pepall, Harvison Young and Sossin JJ.A.

BETWEEN:

His Majesty the King Respondent

and

George Sault Appellant

Counsel: Paul Socka, for the appellant Étienne Lacombe, for the respondent

Heard: In writing

On appeal from the sentence imposed on November 15, 2023 by Justice Kathleen A. Baker of the Ontario Court of Justice.

Reasons for Decision

[1] The respondent Crown joins the appellant in asking this court to reduce the appellant’s custodial sentence by 10 months. Through inadvertence, the joint submission negotiated by the parties was not submitted to the sentencing judge. She sentenced the appellant to 36 months rather than the 26 months negotiated by the parties. Counsel reappeared before the sentencing judge. On being apprised of the error, the sentencing judge was of the view that she was functus officio and that recourse would have to be to this court perhaps by a consent appeal.

[2] It is well established that a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest: R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 32. There is no basis for making such a finding in the present case.

[3] Appellate intervention is justified in this case so as to give effect to the agreed upon sentence and to rectify the inadvertent denial of procedural fairness: R. v. Smith, 2023 ONCA 500, 89 C.R. (7th) 297. Accordingly, leave to appeal sentence is granted, the sentence appeal is allowed, and a sentence of 26 months less 26 months of pre-trial credit is substituted for the 36-month sentence less pre-trial credit.

“S.E. Pepall J.A.”

“A. Harvison Young J.A.”

“L. Sossin J.A.”