



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Simmons, 2021 ONCA 919

DATE: 20211221

DOCKET: C69285

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaiah Norlyn Simmons

Appellant

Jessica Zita, for the appellant

Erica Whitford, for the respondent

Heard: December 14, 2021

On appeal from the sentence imposed on February
    1, 2021 by Justice John A. Desotti of the Superior Court of Justice, with
    reasons for sentence reported at 2021 ONSC 674.

REASONS FOR DECISION

Overview

[1]

The appellant pleaded guilty to possession for
    the purpose of trafficking cocaine, possession of a loaded prohibited firearm,
    and possession of a loaded firearm while prohibited from doing so. The
    appellant received a global sentence of six years imprisonment.

[2]

The appellant contends that the global sentence
    of six years is excessive and should be reduced to a sentence in the range of
    five to five and a half years. In support of this submission, the appellant
    makes two arguments
[1]
:

1.

The sentencing judge erred in treating the
    timing of the appellants guilty plea (after the preliminary hearing) as an
    aggravating factor.

2.

The sentencing judge failed to consider the
    appellants rehabilitative potential.

[3]

At the conclusion of the hearing, we granted
    leave to appeal sentence but dismissed the appeal for reasons to follow. We now
    provide our reasons.

Facts

[4]

The appellant was arrested following a high-risk
    police takedown of a car. The appellant was in the front passenger seat. During
    the takedown, the appellant removed a fully loaded handgun from his waistband
    to drop it on the floor of the car. He was also found with a firearm magazine containing
    ten bullets in his jacket pocket. A vacuum sealed plastic bag containing 250
    grams of cocaine and crack-cocaine  valued at $25,000  was also found in the
    car, along with a digital scale.

[5]

At the time of his arrest, the appellant was subject
    to a ten-year firearms prohibition order. That order had been imposed by a
    court in 2017 after the appellants convictions for possession of a loaded
    prohibited/restricted firearm and carrying a concealed weapon.

[6]

The sentencing judge sentenced the appellant to
    four years on the possession of a loaded prohibited firearm offence; one-year
    consecutive for the weapons prohibition breach, and one-year consecutive for
    the drug offence for a global sentence of six years. From this six-year
    sentence, the appellant received
Summers
credit of 660 days and
Duncan
credit for 107 days for a total deduction of 767 days from the global
    sentence:
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575;
R.
    v. Duncan
, 2016 ONCA 754.

Discussion

A.

The Timing of the Guilty Plea

[7]

The appellant argues that the sentencing judge
    erred in principle when he noted that it was an aggravating factor that there was
    a preliminary hearing before the [appellant] eventually entered into guilty
    pleas. The appellant submits that this error deprived the appellant of
    substantial credit for pleading guilty in the sentencing process.

[8]

We agree with the appellant that the sentencing
    judge erred in considering the timing of the guilty plea to be an aggravating
    factor: see
R. v. Kozy
, (1990), 74 O.R. (2d) 545 (Ont. C.A.), at
    p. 550;
R. v. F. (J.)
, 2011 ONCA 220, 105 O.R. (3d) 161, at para. 84, affd
    on other grounds, 2013 SCC 12, [2013] 1 S.C.R. 565. The fact that a preliminary
    hearing had been held before the appellant pleaded guilty should not have been
    treated as an aggravating factor.

[9]

That said, an error in principle, the failure to
    consider a relevant factor, or the erroneous consideration of an aggravating
    factor will only justify appellate intervention if it appears from the sentencing
    judges decision that such an error had an impact on the sentence:
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44.

[10]

In our view, appellate intervention is not
    justified in this case. The timing of the guilty plea was not central in the
    sentencing judges assessment on sentence. It was only one of several
    aggravating factors noted by the sentencing judge. The sentencing judge focused
    on the fact that the appellant had received a serious previous sentence in 2017
    for possession of a restricted weapon with a prohibition from the possession of
    firearms and the appellant was oblivious to the peril that he would face if
    again apprehended for similar offences. The sentencing judge quite properly
    concluded that [p]ossessing a firearm while selling drugs is a recipe for
    death or injury to the [appellant], unsuspecting buyers of drugs, criminals
    that are intent on depriving the [appellant] of money or drugs, or the public
    who may unwittingly be present when the potential mayhem begins.

[11]

In light of the seriousness of the offence
    involving a firearm; the appellants previous record; the possession of a
    significant amount drugs for trafficking; and the possession of a firearm in
    breach of the outstanding weapons prohibition, we cannot say that the trial
    judges error impacted the sentence he ultimately imposed. We would not give
    effect to this ground of appeal.

B.

The Appellants Rehabilitative Potential

[12]

The appellant argues that the sentencing judge
    did not address the appellants rehabilitative potential, which was addressed in
    materials filed during the hearing. We disagree. The sentencing judge
    referenced the pre-sentence report and a letter from the appellants father
    that addressed the appellants potential to rehabilitate himself. In his
    reasons, the sentencing judge also listed several mitigating factors. However,
    he noted that [e]ach gun case turns frankly on its own offence specific and
    offender specific facts, but that the paramount consideration was deterrence
    and denunciation. We see no basis to interfere with his assessment and
    balancing of the relevant principles. This ground of appeal must fail.

Disposition

[13]

For these reasons, leave to appeal sentence is
    granted but the appeal is dismissed.

E.E.
    Gillese J.A.

David
    Brown J.A.

S.
    Coroza J.A.





[1]

The appellants counsel advised during oral argument that
    the appellant was abandoning the other two grounds of appeal raised in the
    factum, as well as the fresh evidence application.


