Appeal court highlights importance of counsel clarifying facts before entering plea
A man convicted for a jewellery store robbery, who fled the jurisdiction and was sentenced in absentia, had his sentence reduced at the Ontario Court of Appeal because the sentencing judge had relied on the Crown’s view that he was the mastermind of the heist.
The appellant in R. v. Sithravel, 2023 ONCA 748 appealed the nine-year sentence a court-ordered after he pled guilty to one count of robbery. He argued his sentence should have been no more than eight years and that the sentencing judge erred in relying on facts to which he did not agree in his guilty plea. The appeal court allowed the appeal and reduced the appellant’s sentence by nine months.
The Court of Appeal said that how counsel dealt with the facts supporting the guilty plea when the plea was entered was “unsatisfactory.” When the parties entered the plea, the facts supporting it “proceeded, effectively, as a negation on the record” because counsel did not agree on all the qualifications placed on the facts.
The judge sentenced the appellant on the basis that he had admitted to being the “mastermind” of the robbery, though he had denied that at the time of the plea.
“As the court noted, this error may have been the product of the passage of time between the plea and the ultimate sentencing that proceeded in absentia since the appellant had absconded some months earlier,” says Richard Litkowski, who was the appellant’s lawyer on the appeal.
“The court acknowledged that it is proper for a defendant to qualify the facts that the Crown seeks to have admitted, especially where the Crown proceeds on the basis of a synopsis that is often ‘aspirational’ in terms of the facts that the Crown can actually prove,” says Litkowski. “The court went on to issue, through its reasons, what can fairly be described as a ‘judicial practice direction,’ namely that the details of the facts to be admitted and those that may be the subject of a [R. v. Gardiner,  2 S.C.R. 368] hearing, should be sorted out by counsel before the plea is entered.”
The Court of Appeal noted that an accused person pleading guilty is not required to admit all the facts that the Crown seeks to admit in support of the guilty plea, and there is nothing wrong with the accused putting qualifications to the admitted facts. But these details should be sorted before the plea is entered “both as a matter of clarity of the facts admitted in support of a guilty plea and efficient use of court time,” said the court.
The admitted facts are essential because the accused is giving up their right to require the Crown to prove the facts establishing the offence and to prove aggravating factors, said the appeal court. As happened in this case, a lack of factual clarity can produce errors concerning the circumstances used as aggravating or mitigating factors and confuse the factual record for appellate review, said the court.
The appellant was involved in what the Court of Appeal described as “a violent robbery of a jewellery store with an imitation firearm.” The appellant was not at the scene of the offence, but he assisted in its preparation and planned to be the fence for the stolen goods.
The appellant pled guilty in 2015. During the plea inquiry, the Crown read the facts on the planning and execution of the robbery, and these included that the appellant “came up with the idea” and engaged in various acts of planning that would indicate he led the robbery’s preparation. Defence counsel then listed several qualifications, including that the appellant was at one of the meetings where he and the co-accused planned the theft, but he was not the one who called the meeting and that the plot was not his idea.
The Court of Appeal said that the transcript was clear that, before the hearing, counsel had discussed that the defence would qualify some of the facts the Crown sought to admit but that they had not discussed many of the facts that the appellant was not prepared to admit. The appellant did admit that he participated in the robbery’s planning and would fence the proceeds, and on that basis, the judge found him guilty. The Crown said it would call evidence at the sentencing hearing to prove other facts that the appellant disputed.
But the appellant did not show up for the sentencing hearing. The matter was adjourned to a few months later, and the appellant was again absent. According to police, he had fled to Sri Lanka. The Crown applied to proceed with sentencing in absentia. At the sentencing hearing, which was six months after the plea was entered, the Crown did not tell the sentencing judge that the appellant had not admitted all the facts the Crown had read at the plea hearing. The Crown also relied on disputed facts in her “agreed statement of fact” without mentioning that the appellant had qualified some of them.
The sentencing judge relied on the appellant being the robbery’s “mastermind” as a “central aggravating factor,” said the Court of Appeal. The transcript from the guilty plea shows that the appellant never admitted to being the mastermind. The court found that the sentencing judge erred in principle by treating the mastermind allegation as an aggravating factor.
The two co-accused had been sentenced to eight and eight-and-a-half years. The Crown had sought an eight-year sentence for the appellant in accordance with the parity principle. The sentencing judge found that the degree of culpability associated with being the mastermind and absconding warranted a higher sentence. The appeal court decided that a sentence of eight years and three months was appropriate in terms of parity with his co-conspirators and considering his absconding.