



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fuller, 2020 ONCA 115

DATE: 20200213

DOCKET: C65692

Gillese, Rouleau and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terry Robert Fuller

Appellant

Michael Ellison, for the appellant

Adam Wheeler, for the respondent

Heard: January 13, 2020

On appeal from the sentence imposed on December 20, 2017
    by Justice Robert S. Gee of the Ontario Court of Justice, with reasons reported
    at 2017 ONCJ 865.

REASONS FOR DECISION

A.

overview

[1]

The appellant pled guilty on the basis of a joint sentencing position.
    The sentencing judge expressed concern with that position, after which the
    parties proposed another joint sentencing position. In the end, the appellant
    received a sentence that exceeded both joint positions.

[2]

The appellant argues that the sentencing judge erred when he departed
    from both joint positions in the court below. He asks that leave to appeal
    sentence be granted, the appeal be allowed, the custodial portion of the sentence
    be set aside, and a new sentence imposed that reflects the final joint position.
    We agree.

B.

background

(1)

The facts before the sentencing judge

[3]

The 55-year-old appellant pled guilty to one count of robbery. Under the
    influence of fentanyl, he entered a pharmacy wearing a baseball cap, a hoodie,
    and sunglasses. He pulled out a knife with a five-inch blade and demanded that
    the pharmacist give him narcotics. He filled his bag with numerous bottles and
    packages of drugs, including fentanyl patches, hydromorphone, and oxycodone. It
    is agreed that he did not know how many drugs he had taken. The appellant then
    fled the scene in his getaway vehicle  a bicycle  and ran straight into a
    police cruiser that was responding to the 9-1-1 call.

[4]

There is no suggestion that the appellant took the drugs for anything
    other than his own personal use, to feed an opioid addiction that he developed
    as a teen when he was prescribed opioids for an injury.

[5]

The appellant has a very lengthy criminal record which bespeaks a
    lifelong challenge with drug addiction. It includes 70 prior convictions, 3 of
    which are for robbery. Two of the robbery convictions, though, are from 26
    years prior to this offence and resulted in the appellant receiving a sentence
    of three years custody to be served concurrently on each count. The last
    robbery conviction was entered six years before the offence that is the subject
    of this appeal. For that robbery conviction, the appellant received a sentence
    of approximately nine months. That was also the appellants last conviction
    before the robbery that forms the backdrop of the sentence appeal in this case.

[6]

Other than the 3-year sentence from 26 years prior to this offence, the
    appellant had never received a penitentiary sentence.

(2)

The proceedings at sentencing

[7]

The appellant pled guilty about one month after the offence was
    committed. A joint position was advanced by experienced trial and Crown counsel.

[8]

The original joint position was for two years custody in addition to pre-sentence
    custody. At that time, the appellant had served the equivalent of 51 days
    pre-sentence custody. The sentencing judge expressed concern with that joint position
    given, among other things, the appellants lengthy criminal record, as well as the
    nature and quantity of the drugs stolen. The matter was put over to allow a
    pre-sentence report to be prepared.

[9]

The matter returned to court about a month later. At that point, the
    pre-sentence custody had increased to the equivalent of 91 days. Counsel agreed
    that, if sentencing had proceeded on that day, and the joint position had been accepted,
    the equivalent of a 27-month sentence would have been imposed.

[10]

The sentencing judge was still not satisfied with the joint position. At
    counsels request, the matter was adjourned to permit the appellant to bring an
    application to set aside his guilty plea. That application was heard three
    weeks later and taken under reserve.

[11]

On December 20, 2017, the matter returned to court for the fourth time. At
    the commencement of the hearing, the appellants counsel informed the sentencing
    judge that the parties were proposing a new joint position:

[A]fter your extensive review of this matter, I met with the
    Crown Attorney. They have reviewed the matters again and because of all of the
    exigencies,
we would like to offer a joint submission for time served plus
    three years, boosting it up a further year from what it was.
At the time it
    would be an
effective sentence of 40.5 months
, which for all the reasons
    we have put on the record,
et cetera
, this was a late-breaking
    development so sorry to surprise you with it. [Emphasis added.]

[12]

Instead of two years custody, counsel were now jointly suggesting a
    three year custodial term, in addition to time served, which, by that point,
    was the equivalent of 4.5 months. In other words, counsel were now suggesting a
    sentence that included an additional year of custody. The sentencing judge
    immediately dismissed the new position, saying: [F]or the reasons Im about to
    deliver
that is not agreeable in the circumstances
 (emphasis added). The
    sentencing judge never addressed why the final joint position was not
    agreeable. Instead, he gave reasons for refusing to allow the appellant to set
    aside his guilty plea, followed by reasons for why the original joint position of
    two-years custody in addition to pre-sentence custody was, in his view,
    inadequate. He then sentenced the appellant to a five-year sentence, minus 4.5
    months for pre-sentence custody, leaving the appellant with 55.5 months to
    serve.

C.

The parties positions on appeal

[13]

The appellant does not challenge the decision refusing to allow him to
    set aside his guilty plea. Instead, he challenges the fact that the joint
    positions were rejected.

[14]

While the appellant acknowledges that the sentencing judge followed the correct
    procedural steps when contemplating rejecting a joint position, he argues that the
    sentencing judge fundamentally misapplied the threshold test justifying a
    departure from a joint position. The appellant argues that the sentencing judge
    erred in failing to grapple with the final joint position advanced by counsel
    and why that proposed sentence would so seriously harm the administration of
    justice that it could not be countenanced.

[15]

Crown counsel on appeal takes a different position than the trial Crown
    who arrived at and advanced the joint positions. Contrary to the trial Crowns
    position, Crown counsel on appeal argues that both joint positions were clearly
    contrary to the public interest and proper administration of justice. While
    Crown counsel acknowledges that joint positions should not be lightly
    interfered with, the circumstances of this case and this offender demanded the
    imposition of a sentence that well exceeded what was being proposed to the
    sentencing judge. Accordingly, it was not necessary for the sentencing judge to
    address the final joint position, given that it so badly fell below the mark of
    a reasonable joint position.

D.

analysis

[16]

A joint position on sentence following a guilty plea should only be
    rejected in rare cases because such positions are vitally important to the
    well-being of our criminal justice system, as well as our justice system at
    large:
R. v. Anthony-Cook
, 2016 SCC 43, [2016] 2 S.C.R. 204, at para.
    25. Given that such positions help to resolve the vast majority of criminal
    cases in Canada and promote a fair and efficient criminal justice system,
    deference to those positions should be the rule, not the exception:
R. v.
    Nixon
, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 47. The effective and
    efficient operation of our criminal justice system relies on litigants enjoying
    a high degree of confidence that joint positions will be accepted when guilty
    pleas are entered.

[17]

While joint positions are not immutable, they should only be interfered
    with in exceptional circumstances. The question is not whether a joint position
    results in a fit or a demonstrably unfit sentence, but whether the proposed
    sentence would bring the administration of justice into disrepute, or is
    otherwise not in the public interest:
Report of the Attorney Generals
    Advisory Committee on Charge Screening, Disclosure and Resolution Discussions
,
    the Hon. G. Arthur Martin, Chair (Toronto: Queens Printer for Ontario, 1993),
    at p. 327 (the
Martin Report
).

[18]

In
Anthony-Cook
, at para. 34, Moldaver J. amplified upon the
    public interest test referred to in the
Martin Report
:

a joint submission should not be rejected lightly  Rejection
    denotes a submission so unhinged from the circumstances of the offence and the
    offender that its acceptance would lead reasonable and informed persons, aware
    of all the relevant circumstances, including the importance of promoting
    certainty in resolution discussions, to believe that the proper functioning of
    the justice system had broken down. This is an undeniably high threshold  and
    for good reason

[19]

There is no dispute that the sentencing judge was aware of this test and
    properly articulated it in his reasons for rejecting the joint position. The
    difficulty is that he only applied the test against the first joint position of
    two years in addition to pre-sentence custody.

[20]

The appellant argues that the explicit rejection of the initial joint
    position and implicit rejection of the second joint position reveal a
    fundamental misunderstanding of the inherent value of guilty pleas arising from
    joint positions. In oral submissions, the appellant acknowledged that, because
    the parties amended their joint position, the remedy sought is the imposition
    of the second joint position. As a result, there is no need for this court to address
    whether the original joint position was erroneously rejected by the sentencing
    judge. We should not be taken as commenting either way on the matter.

[21]

The fact is that the parties listened to the trial judges initial expressions
    of concern, discussed the matter between themselves, and returned to court to
    suggest a new joint position. Clearly, the parties were under no obligation to
    advance a new joint position. Indeed, it will be the very rare case where this
    will occur. Joint positions are not intended to be moving targets. Having
    regard to the recognized value to accused, victims, witnesses, counsel, and the
    administration of justice more broadly, judges should only challenge the
    appropriateness of joint positions in rare cases. Having done so in this case,
    though, and having been presented with a new joint position, fairness demanded
    that the newly proposed joint position be addressed.

[22]

The fact remained that the appellant had given up his right to a trial
    and pled guilty at the earliest possible opportunity. Having done so, the
    sentencing judge should have addressed why, through the imposition of a 40.5-month
    sentence, a reasonable person would be led to believe that the proper
    functioning of the justice system had broken down.

[23]

Having failed to apply that test to the second joint position, it falls
    to this court to do so.

[24]

In our view, the circumstances of this case did not justify departing
    from the final joint submission. The fact is that it was not far from the
    four-year sentence imposed by this court against one of the offenders in
R.
    v. Chuvalo

(1987), 24 O.A.C. 71 (C.A.), a decision that the sentencing
    judge acknowledged most closely resembles this case. On a Crown appeal, this
    court increased a sentence for robbery of a pharmacy from 22 months to 4 years.
    While the respondent in
Chuvalo

was much younger than the
    appellant in this case, he also had a criminal record which included convictions
    for robbery and possession of a dangerous weapon. Unlike this case, the
Chuvalo
case involved two armed robbers: one had a hatchet and the other a knife. Unlike
    this case, one of the offenders actually used the butt end of the hatchet to
    strike a pharmacist and also swung the hatchet at the head of a clerk.

[25]

Despite the more serious facts involved in
Chuvalo
,
the
    hatchet-wielding offender received a sentence of only 7.5 months more than the jointly
    recommended 40.5-month sentence in this case.

[26]

Crown counsel acknowledged during oral submissions in this court that a four-year
    sentence in this case would have been within the range, albeit at the bottom
    end of that range. If that is so, it cannot be said that the final joint
    position was so unhinged from the reality of the situation that a reasonable
    and informed person would think that the justice system had broken down if the
    joint position had been adhered to. This is particularly true in light of the
    appellants extremely early guilty plea, which relieved the Crown of its
    obligation to prove the appellants guilt, showed the appellants remorse, saved
    witnesses from testifying, and saved the public the cost that would have been
    involved in running a trial.

E.

disposition

[27]

Leave to appeal sentence is granted and the appeal is allowed. The custodial
    portion of the sentence (four years and seven and a half months) is set aside
    and replaced with a three-year custodial term. The pre-sentence custody of four
    and a half months remains the same, but is in addition to the three-year
    custodial term. The victim fine surcharge order is set aside. The sentence
    remains the same in all other respects.

E.E.
    Gillese J.A.

Paul
    Rouleau J.A.

Fairburn
    J.A.


