



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cudmore, 2020 ONCA 389

DATE: 20200617

DOCKET:C64053

Hoy, MacPherson and Tulloch
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Cudmore

Appellant

Brandon
    Cudmore, 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 conviction entered on March 14, 2017 by Justice Michael P. ODea of
    the Ontario Court of Justice, and from the sentence imposed on June 7, 2017.

REASONS FOR DECISION

[1]

The appellant pled guilty to five charges:
    robbery, possession of a firearm contrary to a prohibition order, use of a
    firearm while committing an offence, failure to comply with a probation order,
    and failure to comply with an undertaking, contrary to ss. 344(1)(a.1),
    117.01(1), 85(1)(a), 733.1(1), and 145(3) of the
Criminal Code
, R.S.C.
    1985, c. C-46.

[2]

On the basis of a joint submission, he was
    sentenced to five years imprisonment for the robbery, one year concurrent for
    possession contrary to a prohibition order, one year consecutive for use of a
    firearm, and six months concurrent for both breaches. He thus received a global
    sentence of six years imprisonment, less eight months credit for presentence
    custody. A victim fine surcharge was also imposed.

[3]

On appeal, the appellant raises two issues: 1) the
    s. 85(1)(a) conviction for possession of a firearm while committing an offence should
    be quashed; and 2) the victim fine surcharge should also be quashed per
R. v.
    Boudreault
, 2018 SCC 58, [2018] 3 S.C.R. 599. At the outset
    of her submissions on behalf of the appellant, duty counsel noted that the
    appellant is abandoning his argument, raised in his notice of appeal, that he
    received ineffective assistance from trial counsel.

[4]

On the first issue, the appellant submits that the
    trial judge erred in imposing a sentence of one year, to be served
    consecutively, for use of a firearm while committing an offence. As an
    essential element of the robbery for which the appellant was convicted is the
    use of a firearm, the s. 85(1)(a) conviction is redundant and should be
    vacated. The current sentence of five years imprisonment for robbery is fit
    and the sentences for the other offences should be served concurrently as
    determined by the trial judge. There is no indication in the sentencing submissions
    that, if the s. 85(1)(a) conviction is vacated, a global sentence of six years
    imprisonment would be fit.

[5]

We agree with the submissions of the appellant.
    Section 85(1) of the
Criminal Code
reads:

Every person commits an offence who uses a
    firearm, whether or not the person causes or means to cause bodily harm to any
    person as a result of using the firearm,

(a) while committing
    an indictable offence, other than an offence under section  344(robbery).

[6]

In reading this section, it is clear that where
    an accused is convicted of an offence under s. 344, s. 85(1) is not applicable,
    as the use of a firearm is already an essential element under s. 344. As such,
    this ground of appeal is allowed and the conviction for the s. 85(1)(a) offence
    is quashed.

[7]

We also agree that, with the elimination of the s.
    85(1)(a) conviction, the accompanying sentence of one year consecutive must also
    be vacated. Accordingly, the sentence appeal with respect to the use of a firearm
    charge is allowed. The sentence is hereby varied for a total sentence of five
    years imprisonment, less eight months credit for presentence custody.

[8]

On consent, we would also allow the sentence
    appeal with respect to the victim fine surcharge. The victim fine surcharge is
    hereby set aside pursuant to
Boudreault
and
R. v. Stockton
,
    2019 ONCA 300.

[9]

Finally, we take note that the appellant, Mr.
    Cudmore, apologized for his actions and expressed a desire to change his life.
    He stated that he has been involved in programming, is taking medication, and
    is seeing counselors. He claims that he is no longer the person who he was when
    he committed the relevant offences. We wish him luck on his way to
    rehabilitation.

Alexandra
    Hoy J.A.

J.C.
    MacPherson J.A.

M.
    Tulloch J.A.


