



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Blake-Samuels, 2021 ONCA 77

DATE: 20210205

DOCKET: C66347

MacPherson, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tomoi Blake-Samuels

Appellant

Craig Bottomley and Janelle Belton, for the
    appellant

Nicholas Hay, for the respondent

Heard: January 22, 2021 by video conference

On appeal from the sentence imposed by
    Justice Antonio Di Zio of the Ontario Court of Justice on October 3, 2017.

MacPherson J.A.:



A.

introduction

[1]

The appellant, Tomoi Blake-Samuels, appeals from
    his sentence on the basis that the trial judge exceeded the Crowns proposal on
    sentence without giving notice to counsel and without providing reasons why the
    proposed sentence was rejected.

[2]

The appellant pleaded guilty to possession for
    the purpose of trafficking, possession of a loaded restricted firearm,
    possession of a loaded prohibited sawed-off shotgun, and possession of a
    firearm while prohibited under s. 51(1) of the
Youth Criminal Justice Act
,
    S.C. 2002, c. 1. At sentencing, defence counsel proposed a two year sentence
    and Crown counsel proposed a four year sentence. The sentencing judge imposed a
    global sentence of five years.

B.

facts

[3]

In December 2016, police observed the appellant
    engage in a number of drug transactions. The appellant was arrested on December
    13 on his way back to his apartment after one of these transactions. The police
    executed a search warrant for the appellants apartment where they found drug
    paraphernalia along with two prohibited firearms, and arrested another man in
    the apartment who was in possession of marijuana and $900.

[4]

At the time of his arrest, the appellant was
    subject to a firearm prohibition order under s. 51(1) of the
YCJA
as a
    result of a manslaughter conviction in May 2014 arising from an accidental
    shooting of his friend. The appellant had no other criminal record.

[5]

After a judicial pre-trial conducted by the
    sentencing judge, the appellant entered a guilty plea on April 7, 2017. In its
    submissions on sentence, the Crown indicated that a sentence of six to seven
    years would be appropriate but ultimately proposed a four year sentence. Defence
    counsel proposed a sentence of two years.

[6]

In imposing the sentence almost six months later,
    the sentencing judge considered the support from the appellants mother and
    sister, that he had a new baby, that he was cooperative with the police, and
    that he helped his co-accused by accepting full responsibility for the crimes.
    The sentencing judge also considered the appellants serious criminal record
    and the psychological assessment which indicated that the appellant was a low
    moderate risk for future violent behaviour and a moderate high risk for
    future involvement in the legal system. The sentencing judge indicated that
    deterrence, denunciation, and protection of society were primary considerations.

[7]

Ultimately, the sentencing judge imposed a
    global sentence of five years, broken down as follows:

·

Possession for the purpose of trafficking  1
    year

·

Possession of a loaded firearm (two counts)  4
    years concurrent

·

Breach of the firearm prohibition order  1 year
    consecutive

[8]

The sentencing judge then deducted pre-trial
    custody at a ratio of 1.5:1, made a DNA order and s. 109 order, and imposed an
    $800 victim fine surcharge.

[9]

The appellant has served his sentence and is out
    of custody.

C.

issues

[10]

The appellant appeals his sentence on three
    grounds. He asserts:

1.

The sentencing judge erred by failing to notify
    counsel that he might impose a sentence beyond the range sought by the Crown
    and defence
;

2.

The sentencing judge erred by failing to provide
    reasons why the proposed sentence range was rejected; and

3.

The sentencing judge erred by imposing a
    sentence beyond the range proposed by counsel.

D.

analysis

(1)

The appellants position

[11]

First, the appellant submits that the sentencing
    judges failure to give notice that he was considering exceeding the sentence proposed
    by the Crown undermined his right to respond to the case against him. He
    submits that where an issue has a significant bearing on liberty, the parties
    must be notified of the issue in order to have an opportunity to respond.
    Because the parties were not notified that the sentencing judge was considering
    a sentence beyond four years, neither counsel was able to address why a five
    year sentence was not proposed and why it was not viewed as necessary to
    achieve the sentencing principles.

[12]

Second, the appellant submits that the failure
    to provide notice was compounded by the sentencing judges failure to provide
    reasons as to the need for a sentence beyond the Crowns proposal. The reasons
    for sentence do not reveal why the principles of sentencing could only be
    satisfied with a longer sentence than that proposed.

[13]

Third, the appellant submits that if the
    sentencing judge intended to go beyond the range proposed by counsel, he should
    have applied the public interest test from
R. v. Anthony-Cook
, 2016
    SCC 43. This would have meant that the proposed range could not have been
    rejected unless the sentencing judge was of the view that a four year sentence
    would bring the administration of justice into disrepute and had notified
    counsel of his intention to impose a higher sentence:
Anthony-Cook
, at
    para. 32. While the appellant acknowledges that this case does not deal with a
    joint position, as in
Anthony-Cook
, he submits that the same
    considerations apply.

[14]

Finally, it is the appellants submission that a
    four year sentence is fit considering the guilty plea, that he took
    responsibility for his actions, his age, his family support, and his mental
    health issues.

(2)

The respondents position

[15]

The respondent submits that, while the
    sentencing judge should have provided the parties with an opportunity to make
    submissions before exceeding the Crowns proposed sentence, the appeal should
    be dismissed because the sentence was fit. It is the respondents position that
    any procedural unfairness resulting from the failure to give notice can be
    cured on appeal by giving the appellant the opportunity to make full
    submissions on the fitness of the sentence.

[16]

The respondent takes issue with any application
    of
Anthony-Cook
because there was no joint position and the range
    proposed did not form part of a plea bargain. The respondent submits that because
    there was no joint position, the sentencing judge was free to exceed the
    Crowns position if he felt it was necessary to fashion a fit sentence, without
    resorting to the public interest test.

[17]

Further, the respondent submits that despite any
    procedural error, the sentence was fit. The sentencing judge was justified in
    exceeding the Crowns position as sentences for repeat firearm offenders rarely
    dip below six years.

(3)

Legal framework

[18]

The starting point for an appeal court when
    considering a sentence appeal is
R. v. Lacasse
, 2015 SCC 64. An
    appellate court may interfere with a sentence where: 1) there is an error in
    principle, a failure to consider a relevant factor or the erroneous
    consideration of an aggravating or mitigating factor, or 2) the sentence is
    unfit:
Lacasse
, at paras. 43, 51. Not all errors in principle will
    warrant intervention. Appellate intervention will only be justified where it
    appears from the trial judges decision that such an error had an impact on the
    sentence:
Lacasse
, at para. 44.

[19]

In
R. v. Grant
, 2016 ONCA 639, this
    court held, at para. 164:

A trial judge is entitled to go beyond the
    Crowns position if the sentence imposed is still reasonable. But a long line
    of authority in this court has held that when a trial judge proposes to do so,
    the trial judge should alert the parties and give them an opportunity to make
    further submissions. And ideally, if the trial judge still does impose a
    sentence in excess of a Crowns position, the trial judge should explain the
    reason for doing so.

[20]

On a number of occasions, this court has
    indicated that a sentencing judge should have informed the parties that they
    intended to exceed the Crowns sentencing proposal, but has nevertheless upheld
    the sentences as fit:
R. v. Hagen
, 2011 ONCA 749, at paras. 5-6;
R.
    v. Rosenberg
, 2017 ONCA 313, at paras. 3-4;
R. v. Bush
, 2012 ONCA
    743, at para. 11;
R. v. Sinasac
, 2015 ONCA 735, at para. 3.

[21]

None of the cases from this court deal with the
    present situation, where a sentencing judge exceeds the Crowns proposed
    sentence
and
fails to provide reasons for doing so.

[22]

In
R. v. Ibrahim
, 2011 ONCA 610, this
    court stated: [t]his court has held that a trial judge does not err by
    exceeding the prosecutors suggested sentence, provided that the sentence is
    reasonable, even in the absence of reasons for departing from the prosecutors
    suggestion: at para. 14. However, in that case, the parties were given notice
    that the sentencing judge intended to go beyond the sentence proposed by the
    Crown and trial counsel made no objection.

[23]

There is more clarity on the proper process in
R.
    v. Kravchenko
, 2020 MBCA 30, at para. 32. Although not binding on this
    court, it is useful here:

The parties agree that the judge did not have
    to apply the public-interest test from
Anthony-Cook
to deviate upward
    from the Crowns position on sentence.  What was before her was not a joint
    submission as there was not a full agreement as to the appropriate sentence (
Anthony-Cook
at n. 1).  It is not disputed that this error was, however, harmless (see
Houle
at para. 11).
Assuming
appropriate caution has
    been taken to ensure that the requirements of section 606(1.1) of the
Code
are complied with in the case of a guilty plea (as was the case here),
fair warning has been given of the possibility of departure
    from the range suggested by counsel and the parties have had a fair opportunity
    to respond, the judge is entitled to impose a proportionate sentence outside
    the range
.  That said, as I will explain later,
a
    sentencing judges reasons must adequately explain a principled rationale for
    the departure
. [Emphasis added.]

[24]

Further guidance is available from Clayton C.
    Ruby,
Sentencing
, 9th ed. (LexisNexis, 2017), at para. 3.93 referring
    to
R. v. Keough
, 2012 ABCA 14:

Section 7 of the Charter would seem also to
    require that the judge provide an opportunity to make submissions where the
    judge intends to impose a higher sentence than recommended by the Crown. The
    Court of Appeal dismissed the appeal because although an opportunity to be
    heard was not afforded to counsel, which was wrong, the sentence was
    nonetheless within the proper range. This is a principle that governs the
    fitness of a sentence. But it seems inappropriate when we do not know where on
    the proper range the sentence would have been fixed if the judge had heard
    effective submissions. As is made clear by the law outlined above, clarity is
    required on whether it is required or recommended that a sentencing judge
    notify the parties that they intend to exceed the sentencing range proposed by
    counsel, whether reasons are required, and how an appellate court should
    approach the situation.

[25]

The appellant proposed that the public interest
    test from
Anthony-Cook
, decided in the context of a sentencing judge
    exceeding a joint submission, should also apply when a sentencing judge intends
    to exceed the Crown position irrespective of a joint submission. There, Moldaver
    J. held that, under the public interest test, a trial judge should not depart
    from a joint submission on sentence unless the proposed sentence would bring
    the administration of justice into disrepute or is otherwise contrary to the
    public interest: at para. 32.

[26]

Moldaver J. further explained this standard, at
    para. 34:

Rejection denotes a submission so unhinged
    from the circumstances of the offence and the offender that its acceptance
    would lead reasonable and informed persons, aware of all the relevant
    circumstances, including the importance of promoting certainty in resolution
    discussions, to believe that the proper functioning of the justice system had
    broken down.

[27]

This is a high threshold. Moldaver J. continued
    on to explain that such a stringent test is appropriate because of the benefits
    of joint submissions. A lower threshold would cast the efficacy of resolution
    agreements into too great a degree of uncertainty: at para. 42.

[28]

Beyond the public interest test,
Anthony-Cook
also offers some underlying considerations that are relevant to this appeal. It
    states that

if the trial judge is not satisfied with the sentence
    proposed by counsel, fundamental fairness dictates that an opportunity be
    afforded to counsel to make further submissions in an attempt to address thejudges
    concerns before the sentence is imposed
:
at para. 58, citing
R.
    v. G.W.C.
, 2000 ABCA 333, at para. 26. If the judge, after receiving
    submissions, remains unsatisfied with the position, the judge should provide
    clear and cogent reasons for departing from the joint submission: at para. 60.

(4)

Application of the law

[29]

There is no dispute that a sentencing judge
    retains discretion to exceed the Crowns position on sentencing. What is in
    issue is the process that must be followed when a sentencing judge wishes to
    exercise that discretion. This court has not previously had the opportunity to
    answer this question in the context where a sentencing judge has both failed to
    provide notice of an intention to exceed the Crowns proposal on sentence and
    failed to provide reasons for that decision.

[30]

In my view, if a sentencing judge intends to
    exceed the Crowns position on sentence, the judge is required to notify
    counsel, provide an opportunity for further submissions, and provide clear and
    cogent reasons for imposing a sentence beyond the Crowns position.

[31]

I will deal with the appellants issues together
    as they all bear on one another.

[32]

Fundamental fairness requires the parties to be
    permitted to make further submissions if the sentencing judge intends to exceed
    the sentence proposed by the Crown and clear and cogent reasons are required if
    the judge, having heard additional submissions, still believes it necessary to
    go beyond the Crowns position.

[33]

More than a recommendation that sentencing
    judges follow this procedure is required. It is not appropriate to deny procedural
    fairness during the sentencing process with the expectation that any error can
    be cured on appeal. It is contrary to the commitment to access to justice,
    contrary to natural justice, and contrary to a commitment to judicial economy
    to permit sentencing judges to go beyond counsel submissions and force
    offenders to rely on the appeal process to ensure fairness. Fairness should be
    afforded at all steps.

[34]

In this case, the failure to notify counsel of a
    possible sentence beyond the Crowns proposal was compounded by the failure to
    provide reasons why the additional time was imposed. The reasons for sentence do
    not reveal why the principles of sentencing could only be satisfied with a
    longer sentence than that proposed.

[35]

Indeed, it is clear that defence counsel did not
    understand the need to go beyond the Crowns position. Her concern and
    confusion is highlighted, in part, in these comments made immediately after the
    sentence was imposed:

But not being able to make any further
    submissions or anything else to deal with 365 days over and above what my
    friend was even seeking.



Your Honour had not pointed to any area of the
    pre-sentence report that was so aggravating that would cause Your Honour to
    disagree with the Crown's suggested range.  I don't understand what about the
    pre-sentence report is particularly aggravating.

[36]

Lacasse
permits
    this court to intervene in a sentence when there has been an error in principle
    that has affected the sentence. It is impossible to say that the sentence was
    not impacted by the unavailability of submissions  our adversarial system
    relies on counsels presentation of submissions and framing of the issues. Neither
    party had an opportunity to explain why a four year sentence was appropriate or
    why a longer sentence would not be appropriate in the circumstances.

[37]

The respondent takes the position that
    regardless of the procedural deficiency the sentence imposed was fit and that
    this court should not intervene. During sentencing submissions, the Crown indicated
    that, in general, a sentence of up to seven years could be appropriate.
    However, Crown counsels submission was nonetheless that four years was an
    appropriate sentence for this specific offender in his specific circumstances.
    Reverting to general ranges does not address the specificity required in
    sentencing and provides no indication to the offender, or the public, of why
    the sentence imposed was appropriate in the circumstances.

[38]

I would agree with the statement from Clayton
    Ruby above that a finding on appeal that a sentence was fit despite there
    having been no opportunity for submissions seems inappropriate when we do not
    know where on the proper range the sentence would have been fixed if the judge
    had heard effective submissions. Here, the need to intervene is compounded by
    the lack of reasons explaining the need to exceed the Crowns position.

[39]

Where, as here, a sentencing judge makes an
    error in principle that has an impact on the sentence an appellate court must
    perform its own sentencing analysis to determine a fit sentence:
Lacasse
,
    at para. 43. This means that the appellate court will apply the principles of
    sentencing afresh to the facts, without deference to the existing sentence,
    even if that sentence falls within the applicable range:
R. v. Friesen
,
    2020 SCC 9, at para. 27.

[40]

In this case a sentence of four years, as
    proposed by the Crown at sentencing, would be a fit sentence considering the
    factors raised by the appellant: the guilty plea, that the appellant took
    responsibility for his actions, his age, his family support, and his mental
    health issues.

E.

disposition

[41]

I would allow the appeal and substitute a
    sentence of four years. The victim fine surcharge of $800 is vacated on consent
    of the parties per
R. v. Boudreault
, 2018 SCC 58.

Released: JCM FEB 05 2021

J.C. MacPherson J.A.

I agree. Gary Trotter J.A.

I agree. Harvison Young J.A.


