DATE: 20040202

DOCKET: C40954

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and –JACQUELINE McCARTEN (Appellant)

BEFORE:

SHARPE, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Irwin Koziebrocki, for the appellant

Kim Crosbie for the respondent

HEARD:

January 30, 2004

On appeal from sentence imposed by Justice J.J. Douglas of the Superior Court of Justice dated August 19, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] We are not persuaded that this sentence was unfit. This was a serious offence committed while the appellant was on probation for a similar offence. Given her prior record and the fact that she has had the benefit of a conditional sentence and still re-offended, we see no error in this sentence. There was some evidence of mental illness, contrary to the finding of the trial judge. However, there was no evidence linking her mental illness to this offence.

[2] The probation condition regarding the appellant’s residence is in keeping with the intent and purpose of s. 732(3)(h). We do not agree that it is unduly punitive but consider it to be integrally linked to the offence committed by the appellant. However, the wording of the order should be amended to reflect the precise terms of the trial judge’s reasons as follows: “If sharing accommodation or residing in a private residence, you must advise the landlord or owner of your prior criminal record.” We would therefore grant leave to appeal and allow the appeal by amending the terms of the probation as set out above, but otherwise dismiss the appeal.