DATE: 20020115 DOCKET: C36477
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. JEFFREY B. (A Young Person) (Appellant)
BEFORE:
McMURTRY C.J.O., ROSENBERG and MacPHERSON JJ.A.
COUNSEL:
Marc E. Schiffer,
for the appellant
Kenneth L. Campbell,
for the respondent
HEARD:
December 18, 2001
RELEASED ORALLY:
December 18, 2001
On appeal from his conviction by Justice Donald S. Cooper on January 9, 2001 and from the sentence imposed on March 6, 2001.
E N D O R S E M E N T
[1] The evidence that this was a joint enterprise from the beginning was compelling. The theft took place in the early morning hours in an isolated area. The appellant’s presence in the van could not have been accidental or coincidental. The appellant and the others were found in the van along with other stolen goods less than forty-five minutes after the theft. In that short time, they had damaged the interior.
[2] The trial judge acquitted the appellant of theft because he found that the driver was the prime perpetrator. He erred in failing to consider the appellant’s liability for theft on the basis that he was engaged in a joint enterprise with the driver and the others. This is not a case of inconsistent findings of fact but an error with respect to the legal effect of those findings. See R. v. Ertel (1987), 1987 183 (ON CA), 35 C.C.C. (3d) 398 (Ont. C.A.) at p. 426. The verdicts were not so inconsistent as to require intervention of this court. The appeal from conviction is dismissed.
[3] With respect to the disposition, we are all of the view that the disposition was not unfit. The offence was committed while the appellant was on probation. He had a relatively serious record for his age, including convictions for similar offences. As to disparity, there were good grounds for distinguishing the appellant’s position from that of the younger co-accused who had no prior record. The trial judge did not err in principle in taking into account that the appellant committed a further offence while awaiting sentence in deciding whether secure custody was required.
[4] Accordingly, while leave to appeal disposition is granted, the appeal from disposition is dismissed.
(signed) "Roy McMurtry C.J.O."
(signed) "M. Rosenberg J.A."
(signed) "J. C. MacPherson J.A."