



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Hinds, 2022 ONCA 257

DATE: 20220329

DOCKET:
    C69759

Pepall,
    Tulloch and Huscroft JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Paul
    Hinds

Appellant

Talman W. Rodocker, for the appellant

Rebecca De Filippis, for the respondent

Heard: in writing

On appeal from the sentence imposed on July
    8, 2021, by Justice Karey Katzsch of the Ontario Court of Justice.

REASONS
    FOR DECISION

[1]

The appellant seeks leave to appeal his sentence
    and if leave is granted, he appeals his sentence of six months' custody. He
    asks this court to impose the joint submission crafted by counsel.

[2]

The appellant was arrested in January 2021 for
    possession of a stolen car in Kitchener. At the time of his arrest, he was
    already in custody for a number of other property-related offences committed in
    Peel (the "Brampton charges").

[3]

The appellant pleaded guilty to the Brampton
    charges on June 22, 2021. Following a joint submission, the appellant was
    sentenced to 18 months' custody, less time served, for a remaining sentence of
    65 days in custody.

[4]

On July 8, 2021, the appellant pleaded guilty to
    the Kitchener charge. At the appellant's guilty plea on the Kitchener charge,
    the Crown and the defence presented a joint submission of "six months
    pre-sentence custody", to be served concurrently with the sentence imposed
    on the Brampton charges. The reasoning behind the joint submission was that the
    charge of possession of stolen property could have been waived over to Brampton
    and be globally resolved. Accordingly, the parties agreed the sentence on the
    possession of stolen property count should not extend the appellant's time in
    custody beyond the time remaining on the other sentence, which was
    approximately 48 days.

[5]

At the time of the Kitchener guilty plea, the
    appellant's counsel told the sentencing judge: "we're asking [the
    sentence] to run concurrent to the sentence imposed two weeks ago in
    Brampton." Counsel explained, by way of background to the joint
    submission, that had the Kitchener charge been waived to Brampton for
    resolution, it would have been part of a global resolution. As the Crown
    explained, "instead of waiving the Kitchener charges over to Brampton, the
    idea was to ask for a concurrent sentence to achieve the same goal."

[6]

The Crown had agreed to the joint submission of
    "time served", as it took into account six months' pre-sentence
    custody.

[7]

The sentencing judge accepted that the joint
    position was reasonable. However, instead of imposing the joint submission of
    time served, the sentencing judge imposed six months "real" custody.
    At the time of sentencing, the trial judge stated: "the sentence will
    reflect six months in custody, to be noted as concurrent to any sentence that
    he is currently serving." The sentencing judge told the appellant that his
    sentence was "a further six months, but it will run concurrently with your
    18 month sentence." This was an inadvertent error on the part of the
    sentencing judge.

[8]

On August 13, 2021, the parties returned in
    front of the sentencing judge to request that the sentence be amended. Counsel
    explained that the sentence on the Kitchener charge factored in the sentence on
    the Brampton charges, and that the joint submission was for six months'
    pre-sentence custody, not six months' real custody. The Crown confirmed that
    "it was the intention of the Crown to run this matter concurrently to the
    Brampton charges [] he only had about 65 days served when he was sentenced
    with Your Honour so it wouldn't make sense that he would get a six-month
    concurrent sentence."

[9]

The sentencing judge found that she was
functus
    officio
and therefore declined to amend the sentence. As a result, the
    appellant now appeals his sentence.

[10]

We agree that the appeal should be allowed. The
    Crown acknowledges that the parties agreed to present a joint submission on
    sentence that would replicate a global resolution with the Brampton charges.
    The parties chose to achieve this goal by advancing a joint submission of six
    months' pre-sentence custody (presumably plus "one day") so that the
    appellant would not remain in custody beyond the completion of the sentence on
    the Brampton charges.

[11]

In the normal course, a trial judge should not
    depart from a joint submission unless the proposed sentence would bring the
    administration of justice into disrepute or it is otherwise contrary to the
    public interest.

[12]

The sentencing judge appears to have been under
    the mistaken impression that the joint submission was for six months' real
    custody. The confusion appears to have arisen from counsel's request that the
    sentence run concurrent to the Brampton sentence. As a result, the sentencing
    judge imposed a sentence that deviates from the intended joint submission. Both
    parties agree that this was an error in principle that warrants appellate
    intervention.

[13]

Accordingly, leave to appeal sentence is
    granted. The sentence appeal is allowed. The sentence imposed is hereby
    vacated, and a sentence of time served, plus one day, concurrent to the
    previous sentence imposed on the Brampton charge is now imposed. However, in
    light of the circumstances, we are exercising our discretion to stay the
    execution of the one-day concurrent sentence. As such, there is no need for the
    appellant to surrender into custody.

S.E.
    Pepall J.A.

M.
    Tulloch J.A.

Grant
    Huscroft J.A.


