



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nicholson, 2019 ONCA 320

DATE: 20190423

DOCKET: C65877

Juriansz, Watt and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jonathan Nicholson

Respondent

Jessica Zita, for the appellant

Susan Reid, for the respondent

Heard: April 17, 2019

On appeal from the sentence imposed on July 27, 2018 by
    Justice Robert P. Main of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant
    appeals from the sentence imposed after he pled guilty to charges of break and
    enter (x 2), assault police with intent to resist arrest, possession of stolen
    property over $5,000, breach of probation, possession of counterfeit mark, and
    mischief to property under $5,000. All offences except the mischief to property,
    which was committed on February 12, 2018, were committed on December 18, 2017.

[2]

During the
    sentencing submissions, both counsel reminded the sentencing judge that at a
    judicial pre-trial held with respect to the December offences only, the judge
    had indicated that something around the range of two and one-half years would
    be a fair position. Neither counsel suggested to the sentencing judge that he
    (the judge) had said he
would
impose
    a sentence of 30 months for those offences.

[3]

As was clear from
    the outset of the sentencing proceedings, counsel were not advancing a joint
    submission on sentence. Each made submissions. Neither sought a sentence of 30
    months for the December offences or the offences as a whole. The Crown sought a
    global sentence of 45 months, the defence one of 18 months to 2 years.

[4]

In his reasons,
    the sentencing judge referred to defence counsels reminder about what had
    occurred at the pre-trial. The judge reviewed his notes of the pre-trial. After
    the Crown had advanced a proposed range of sentence, the judge described his
    response:

I made a reflection on what I thought appropriately could
    reflect adequate denunciation for this behaviour.

[5]

On appeal, the
    appellant submits that the sentencing judges departure from the range he had indicated
    at the pre-trial was unfair. He requests that his sentence for the December
    offences be reduced to 30 months.

[6]

We would not give
    effect to the submission. There is no evidence to support the assertion of
    counsel that the appellant entered his pleas of guilty relying on the judges
    remarks at the pre-trial. The appellant has not moved to set aside his guilty
    plea and he has not alleged ineffective representation by counsel.

[7]

The appellant
    relies on
R. v.
    OQuinn

(2002), 59 O.R. (3d) 321 (C.A.), 159
    O.A.C 186, but this case is quite different. At the pre-trial in
OQuinn
, the judge had stated in
    unequivocal terms that on a guilty plea he
would
impose a certain sentence. He was not reminded of what he
    had said at the pre-trial, and the greater sentence he imposed was for the
    offences discussed at the pre-trial. None of these features are present in this
    case.

[8]

The appellant
    does not submit that the sentence imposed is otherwise unfit for the
    seriousness of the offences and the circumstances of the offender, particularly
    his extremely lengthy criminal record.

[9]

Leave to appeal
    sentence is granted. The victim fine surcharges imposed on the appellant are
    set aside, with the agreement of the Crown. The appeal is otherwise dismissed.

R. G.
    Juriansz J.A.

David Watt
    J.A.

A.
    Harvison Young J.A.


