Court of Appeal for Ontario

Date: 2025-04-23
Docket: COA-24-CR-0095

Before:
Michal Fairburn, David M. Paciocco, Alison Harvison Young

Between:
His Majesty the King, Appellant
and
Justin Glynn, Respondent

Appearances:
Genevieve McInnes, for the appellant
John Fennel, for the respondent

Heard: 2025-04-17

On appeal from the sentence imposed by Justice Erin J. Lainevool of the Ontario Court of Justice on January 2, 2024.

Reasons for Decision

Background

[1] The respondent pled guilty to trafficking cocaine and methamphetamine to an undercover officer over a four-month period and to trafficking for the benefit of a criminal organization.

[2] The trial judge accepted the Crown submission that the appropriate global sentence for the respondent was the equivalent of approximately 42 months’ imprisonment. After giving credit for time served in pre-sentence custody, along with credit for strict bail conditions (a combined total of 542 days), the sentencing judge determined that the sentence should be one of 729 days, to be served as a conditional sentence in the community. This was to be followed by 18 months probation. The sentence ran concurrent on each count for which convictions were entered, except for the offence involving participation in a criminal organization. As for this latter offence, the sentencing judge simply gave credit of 542 days, the equivalent of the combined credit she had allocated for pre-sentence custody and strict bail terms. She also noted 542 days credit in addition to the concurrent sentence of 729 days on the trafficking in cocaine charge.

[3] The sentencing judge also imposed a $15,000 restitution order which was said to represent one-third of the unrecovered money that the respondent acquired through the criminal operation, all of which was money provided by undercover police operatives.

The Crown's Appeal

[4] The Crown appeals from sentence, claiming numerous errors in principle. The respondent agrees with some of those errors.

[5] For instance, the parties are agreed that a conditional sentence was not available in this case. Although the sentencing judge did not specifically state what she deemed to be the appropriate global sentence, by adding together the credit she gave and the sentence she imposed, it is reasonable to conclude that she deemed a sentence of just shy of 3.5 years to be a fit global disposition. The parties are agreed that, even though the credit brought the net sentence below two years in this case, the global sentence of 3.5 years automatically precluded the imposition of a conditional sentence order: R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, at paras. 4, 24.

[6] We agree that there is a clear Fice error in the sentencing judge’s reasons and that, in light of the fit global disposition, a conditional sentence order was not available.

[7] As well, the parties agree that the trial judge erred by not imposing a consecutive sentence on the participation in a criminal organization offence. Section 467.14 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, makes it clear that a sentence imposed on a person for an offence under s. 467.11 shall be served consecutively to any other sentence.

[8] We agree with the parties on this point, that the sentencing judge erred in failing to impose a consecutive sentence when it came to the criminal organization offence. At the same time, we accept the Crown’s acknowledgement that neither party provided any assistance to the trial judge on this point and that the trial Crown did not ask for a consecutive sentence, but instead included the recommended penalty for this offence in its request for a global 3.5-year sentence.

Restitution Order

[9] Finally, the parties are agreed that the stand-alone restitution order is invalid. This is because, as the Crown acknowledges, the primary purpose of a restitution order is to promote “direct accountability by the wrongdoer to the victim” of the crime by recognizing the “specific harm done to victims and by providing a convenient and inexpensive route by which victims may gain at least some redress for that harm”: R. v. Trac, 2013 ONCA 246, 115 O.R. (3d) 424, at para. 35. The Crown acknowledges that this rationale for a restitution order is inconsistent with the order made in this case, which was in effect to reimburse the investigative police agency, for the costs they undertook to investigate the respondent. On this basis, the Crown requests, and the respondent agrees, that the order should be vacated. In the specific circumstances of this case, we accept this position.

Other Errors and Rehabilitation

[10] The Crown raises other errors in principle in relation to the sentence imposed, but considering the joint positions of the parties, there is no need to address them.

[11] Finally, we accept that the respondent is making meaningful progress toward rehabilitation. He is also well down the path toward serving the conditional sentence order that was erroneously imposed.

Remedy and Disposition

[12] At the hearing of the appeal, we were informed by the parties that they agree that the appeal should be allowed and that they have arrived at a joint position in relation to remedy, should the court be inclined to grant the appeal. They agree that given the Crown position at trial and the principles of sentencing, a global sentence of 3.5-years (1,277 days) minus appropriate credit should have been imposed by the sentencing judge. They agree that the conditional sentence should be set aside, and a sentence of 3.5-years minus 94 days of presentence custody should be imposed, but in recognition of the reality that the conditional sentence is largely served and the rehabilitative efforts the appellant has made, the parties jointly submit that the remainder of the sentence should be stayed, as should the criminal organization conviction. They also agree that the restitution order should be set aside.

[13] In the highly unusual circumstances of this case, bearing in mind the time spent in pre-trial custody, the time spent on bail that involved house arrest, the significant credit that we would have to allocate for the 471 days that the appellant has already served on the conditional sentence order, combined with the appellant’s progress toward rehabilitation and the likelihood that he would be eligible for parole, we are prepared to accede to the joint position on remedy. Accordingly, and on consent: the appeal is allowed; the criminal organization conviction is stayed; the conditional sentence is set aside, and we substitute a sentence of 476 days (1,277 days minus 86 days of credit for presentence custody and minus a further 707 days of credit for the 471 days served pursuant to the conditional sentence). However, the remainder of the sentence is stayed, and the restitution order is set aside.

[14] We extend our thanks to counsel for their admirable cooperation and capable assistance in this matter.

“Michal Fairburn”
“David M. Paciocco”
“Alison Harvison Young”