



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Creswell, 2020 ONCA 568

DATE: 20200909

DOCKET: C66273

Paciocco, Nordheimer and
    Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jimmy Creswell

Applicant
    (Appellant)

John
    Fennell, for the appellant

Michael
    Dunn, for the respondent

Heard and
    released orally: September 9, 2020 by video conference

On appeal
    from the conviction entered on July 23, 2018 by Justice Heather E. Perkins-McVey
    of the Ontario Court of Justice, sitting without a jury.

REASONS
    FOR DECISION

[1]

Mr. Jimmy Creswell was convicted after pleading
    guilty to conspiracy to commit aggravated assault, contrary to s. 465(1)(c) of
    the
Criminal Code of Canada
, unlawful confinement contrary to s. 279(2)
    of the
Criminal Code of Canada
and committing an indictable offence for
    the benefit of a criminal organization contrary to s. 467.12(1) of the
Criminal
    Code of Canada
. The pleas were entered on July 23, 2018. During the
    sentencing hearing on August 30, 2018, the sentencing judge was presented with
    a joint position of time served plus 2 years. She accepted that joint
    position and imposed the jointly recommended sentence.

[2]

Mr. Creswell now brings a fresh evidence
    application, and appeals his convictions, arguing that his pleas of guilty were
    uninformed. He contends that he had not instructed his defence lawyer to agree
    to the sentence imposed and expected his defence lawyer to argue for a lesser
    sentence. Mr. Creswell also appeals the victim fine surcharge that formed part
    of his sentence.

[3]

We allow Mr. Creswells motion to present fresh
    evidence but we dismiss his conviction appeal. Mr. Creswell bears the burden of
    satisfying us that his plea was uninformed:
R. v. Quick
, 2016 ONCA 95 at
    para. 28. He has not persuaded us. Defence counsel attests that Mr. Creswell
    instructed him to accept the joint position. Circumstantial evidence supports
    that claim, including, most importantly, that Mr. Creswell interjected on more
    than one occasion during the sentencing hearing to correct mis-information yet
    remained silent when the joint position was arrived at in open court and then communicated
    to the sentencing judge. When Mr. Creswell was cross-examined on his fresh
    evidence affidavit, Mr. Creswell was unsure of conversations he had with
    defence counsel.

[4]

Mr. Creswells conviction appeal is dismissed.

[5]

The Crown agrees that Mr. Creswells appeal of
    the victim fine surcharge should be granted. We grant leave to appeal the
    sentence and allow the sentence appeal, only to the extent that the victim fine
    surcharge is set aside.

David
    M. Paciocco J.A.

I.V.B.
    Nordheimer J.A.

J.A.
    Thorburn J.A.


