R. v. De La Cruz, 2003 CanLII 45233 (ON CA)

DATE: 20030822

DOCKET: C37477

COURT OF APPEAL FOR ONTARIO

CHARRON, MOLDAVER and FELDMAN JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

David E. Harris

for the appellant

Respondent

• and -

Christine Bartlett-Hughes

for the respondent

PAUL DE LA CRUZ

Heard: May 1, 2003

Reasons Released: May 26, 2003

Appellant

ADDENDUM TO SENTENCE APPEAL

1In our reasons for judgment released on May 26, 2003, among other things, we allowed the appellant’s sentence appeal on the charge of criminal harassment and reduced the sentence from three years to two years less one day plus three years probation.

2Unbeknownst to counsel and the court, it seems that on December 20, 2002, the appellant received a sentence of 90 days for an offence that did not form part of the appeal. Significantly, the 90-day sentence was made consecutive to the sentences imposed by the trial judge in the instant case. It follows that when we varied the sentence on the criminal harassment charge to two years less one day plus three years probation, the total period of incarceration imposed on the appellant remained in excess of two years. In turn, that had the effect of nullifying the probation order which we felt was necessary in the circumstances.

3The Crown has now requested that we re-open the sentence appeal to address this matter. Specifically, she requests that we vary the sentence on the criminal harassment charge from two years less one day plus three years probation to twenty months plus three years probation. The appellant consents to that variation.

4In our view, this is an appropriate case to re-open the sentence appeal. Our jurisdiction to do so arises from the fact that at the time of the appeal, we did not have the information needed to fully and properly adjudicate the issue of sentence on the merits.

5Accordingly, an order will go varying the sentence on the criminal harassment charge to twenty months plus three years probation. The terms of probation will remain the same as those set out in paragraph 40 of our reasons for judgment. In all other respects, our reasons for judgment stand.