



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Talbi, 2020 ONCA 388

DATE: 20200617

DOCKET: C67119

Hoy, MacPherson and Tulloch
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Talbi

Appellant

Adam Talbi,
    acting in person

Lindsay Daviau,
    appearing as duty counsel

Jessica
    Smith Joy, for the respondent

Heard:
    June 3, 2020 by Videoconference

On appeal
    from the sentence imposed on June 11, 2019 by
Justice Sally
    A. Gomery
of the Superior Court of Justice
.

REASONS FOR DECISION

[1]

On April 10, 2017, during the course of an
    investigation into the death of Jacob Thompson, the police intercepted a
    telephone call between the appellant, Adam Talbi, and a woman who was a subject
    of the investigation. On the call, the appellant stated that he had grabbed a
    thing from her house. At the time, the appellant was bound by a condition to
    not possess any weapons.

[2]

In the days following the call, the police came
    to learn that the thing was a handgun and that the appellant was holding it for
    the womans brother, who was also a subject of the investigation and who had
    been charged with second-degree murder in connection with the death of Mr.
    Thompson. The police also learned that, while the appellant was holding the
    gun, the woman was helping to broker a sale between the guns owner,
    Christopher Morris, and a third party.

[3]

On April 20, 2017, the police observed the
    appellant and Mr. Morris enter the womans home, bringing with them the loaded
    restricted firearm. The sale was completed at some point the next day by Mr.
    Morris and the third party.

[4]

On April 26, 2017, the police executed a search
    warrant at the purchasers residence where they found a loaded .22 calibre
    revolver. The appellant was subsequently arrested and later released on bail
    with strict conditions, including to remain at his residence except with
    written permission of his surety, and to not associate with any individuals
    known to have a criminal record.

[5]

While on bail, the appellant was arrested and
    charged on two occasions for breaching his bail conditions. On the second
    occasion, which occurred on December 21, 2018, the appellant was found to be
    outside his residence without permission and in the company of a person with a
    criminal record. During the encounter, the appellant also obstructed the police
    by providing two false names.

[6]

On May 27, 2019, the appellant pled guilty to
    four offences: possession of a loaded restricted firearm, possession of a
    handgun contrary to a prohibition order, obstruction of a police officer, and
    failure to comply with a recognizance, contrary to ss. 95(2), 117.01(3),
    129(a), and 145(3) of the
Criminal Code
, R.S.C. 1985, c. C-46.

[7]

On sentencing, the Crown requested 30 months
    imprisonment for possession of the restricted firearm, four months consecutive
    for possession contrary to the prohibition order, and two months consecutive
    for the obstruction and breach of recognizance (for a global sentence of 36
    months imprisonment).

[8]

In her reasons for sentence, the trial judge incorrectly
    stated that the Crown sought a sentence of 36 months imprisonment for the
    possession charge and a global sentence of 42 months. She went on to sentence
    the appellant to 36 months imprisonment for possession, two months consecutive
    for possession contrary to the prohibition order, and one month consecutive for
    both the obstruction and breach. The appellant thus received a global sentence
    of 39 months, less nine months credit for presentence custody.

[9]

On appeal, the appellant argues that the
    sentence for possession is unduly harsh and that a fit sentence would be 30
    months imprisonment, resulting in a global sentence of 33 months, less
    presentence custody.

[10]

We agree. The trial judge committed an error in
    principle when she misapprehended the sentencing submissions of Crown counsel
    and imposed a sentence higher than what both the Crown and defence were asking
    for, without giving any reasons or explanations as to why. The Crown
    acknowledged on appeal that the trial judge did not correctly reiterate Crown
    counsels sentencing submissions and that the sentence imposed is above the
    sentence requested.

[11]

Mindful of our authority to intervene on appeals
    from sentence under
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089,
    we are persuaded that this is an appropriate case to intervene and allow the
    sentence appeal. We agree with the appellant that a sentence of 30 months
    imprisonment for the possession offence is fit. This sentence accords with the
    trial judges decision to impose a global sentence three months less than what
    she believed was requested by the Crown.

[12]

Accordingly, the current sentence for possession
    will be vacated, and a sentence of 30 months imprisonment will be imposed. The
    breakdown of the resulting global sentence is as follows: 30 months imprisonment
    to be imposed on the s. 95(2) offence (possession of a loaded restricted firearm);
    two months consecutive to be imposed on the s. 117.01(3) offence (possession of
    a firearm contrary to a prohibition order); and one month consecutive for the
    obstruction of justice and breach of recognizance offences. The global sentence
    is thus 33 months imprisonment, less nine months credit for presentence
    custody.

Alexandra
    Hoy J.A.

J.C.
    MacPherson J.A.

M.
    Tulloch J.A.


