



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cox, 2019 ONCA 466

DATE: 20190605

DOCKET: C60312

Hoy A.C.J.O., Hourgian and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jerry Cox

Appellant

Paul Alexander, for the appellant

Deborah Krick, for the respondent

Heard and released orally: June 3, 2019

On appeal from the sentence imposed on March 17, 2015 by
    Justice Antonio Di Zio of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Mr. Cox was convicted of a number of offences relating
    to a robbery with a firearm that occurred in 2010. At the sentencing hearing
    held in 2015 he conceded his designation as a dangerous offender based on the
    state of the law at that date.

[2]

On March 17, 2015 the trial judge sentenced Mr. Cox to
    indeterminate detention. Mr. Cox appeals that sentence.

[3]

He alleges a number of errors including that, contrary
    to the decision in
R. v. Boutilier
, [2017] 2
    S.C.R. 936, a decision rendered after his sentencing hearing, the trial judge
    presumed that Mr. Cox must be sentenced to indeterminate detention unless it
    was established that a reasonable expectation exists that Long Term Offender
    sentencing is sufficient.

[4]

The Crown concedes this
Boutilier
error but urges that this is one of those rare cases where the proviso
    should be used. We do not agree. The trial judges conclusions derive from the
    improper presumption he applied. It cannot be said that there is no reasonable
    possibility that the verdict would not have been different had this error not
    occurred.

[5]

In our view, given the complexity of the evidence and
    developments that have occurred since March of 2015, it is not in the interests
    of justice for this court to attempt to determine the appropriate sentence.

[6]

We therefore allow the appeal, set aside the sentence
    and order pursuant to s. 759(3)(a)(ii) that a new sentencing hearing be
    conducted. We direct that the hearing be expedited.

[7]

In our view, Mr, Cox should not be foreclosed from
    available treatment pending this hearing.

[8]

Finally, to be clear, we are not of the view that Mr.
    Cox should be held at the rehearing to the concession of his dangerous offender
    status he made at the initial sentencing hearing.

Alexandra
    Hoy A.C.J.O.
C.W. Hourigan J.A.
David M. Paciocco J.A.


