W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:
486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).
(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) -and-
DAVID ALARY (Applicant/Appellant)
BEFORE:
LABROSSE, GOUDGE and BLAIR JJ.A.
COUNSEL:
Nicholas A. Xynnis
for the appellant
Robert Gattrell
for the respondent
HEARD AND ENDORSED:
January 19, 2005
On appeal from the sentence imposed by Justice Nancy Dawson of the Ontario Court of Justice dated March 19, 2004.
A P P E A L B O O K E N D O R S E M E N T
LABROSSE J.A.
1The majority is of the view that it was an error in principle for the sentencing judge to state that "the only suitable way in this case" was to impose a sentence of imprisonment. The sentencing judge gave insufficient weight to the significant mitigating factors. These included the appellant's age, his learning disability, the absence of any criminal record, and his plea of guilty. In addition, he did everything possible to atone for his conduct and he is not likely to re-offend. He has already served 47 days in jail.
2In our view, it is better for society and for the appellant to allow this appeal and convert the remainder of the sentence into a conditional term of imprisonment, in terms of the conditional sentence order, attached.
BLAIR J.A. (dissenting):
3Respectfully, in spite of the able submissions of Mr. Xynnis, I disagree with my colleagues. The issue is not whether the trial judge could have imposed a conditional sentence. It is evident that in the circumstances she certainly could have done so. The issue is whether she erred in principle. In my view, she did not. She fully considered the circumstances of the offence and of the offender, including the very many mitigating factors in favour of Mr. Alary. She carefully reviewed the applicable sentencing principles as set out in the Criminal Code and the jurisprudence in relation to the "last resort" nature of incarceration and in relation to the principles of conditional sentences as set out in R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.).
4She equally carefully reviewed the imposition of a conditional sentence, but decided that, in the circumstances of this case, the principles of general deterrence and denunciation overrode the factors favouring a conditional sentence and required the imposition of a period of incarceration.
5This was the trial judge's call. That I might not have come to the same disposition is not relevant. The trial judge made no error in principle. I would dismiss the appeal.
COURT OF APPEAL FOR ONTARIO
CONDITIONAL SENTENCE ORDER "SCHEDULE A"
Court File No. C41683
Date: January 19, 2005
NAME: DAVID ASHLEY ALARY D.O.B: April 7, 1982
[...] Ontario
KEEP THE PEACE and be of good behaviour;
APPEAR before the Court when required to do so by the Court;
REPORT forthwith, in person, to a supervisor at Probation & Parole, Suite 203, 2nd Floor, 114 Worsley St., Barrie, Ontario L4M 1M1 and thereafter report when and where required by the supervisor in the manner directed by the supervisor;
REMAIN within the Province of Ontario unless written permission to go outside the province is obtained from the court or the supervisor;
NOTIFY the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change in employment or occupation;
ATTEND and actively participate in such rehabilitative programs as recommended by your supervisor;
MAKE REASONABLE efforts to find and maintain suitable full-time employment;
OBEY A CURFEW: be in your place of residence at all times except for the following:
a. Employment
b. Medical & dental emergencies
c. Reporting to your supervisor or police
d. Saturday from noon to 4:00 p.m. for personal business
e. Unless permission is obtained in writing from your conditional sentence supervisor or designate
NOT TO ASSOCIATE or hold any communications directly or indirectly with [the complainant] or her immediate family;
NOT TO BE WITHIN 500 metres of [the complainant's] residence or place of employment;
THE JAILOR SHALL PROVIDE THE OFFENDER WITH A COPY OF THIS ORDER
THE SUPERVISOR SHALL COMPLY WITH THE PROVISIONS OF s.743.3(3).