DATE: 20060817

DOCKET: C38902

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DAVID MCCLURE (Appellant)

BEFORE:

BORINS, JURIANSZ and LAFORME JJ.A.

COUNSEL:

Gregory Lafontaine and Crystal Tomusiak

for the appellant

Roger A. Pinnock

for the respondent

HEARD & RELEASED ORALLY:

August 15, 2006

On appeal from the long term offender designation imposed on May 9, 2002 by Justice Bruce C. Hawkins of the Superior Court of Justice.

E N D O R S E M E N T

[1] The court would like to extend its appreciation to counsel for working together in resolving this long‑standing appeal. This resolution has proceeded on the basis of what is effectively a joint submission, which the panel is prepared to accept.

[2] On consent of the Crown and counsel for the respondent the appeal is allowed and the appellant is declared a long term offender pursuant to the terms in respect to penalty contained in the joint submission. The joint submission reads as follows:

Counsel for the appellant and the respondent have reached an agreement as to the appropriate sentence that should be put into place on the appellant’s being designated a Long Term Offender pursuant to s. 759(3)(a)(i) of the Criminal Code. Counsel for the appellant and respondent submit that a fit sentence in this case would be one of ten years and four months imprisonment.

Section 759(6) of the Code provides that a sentence substituted by this court shall be deemed to commence on the date upon which the sentence was imposed at trial, which in this case was May 9, 2002. Given that the appellant had spent almost three full years in pre‑sentence custody by May 9, 2002, counsel for the appellant and respondent jointly take the position that the appellant should receive six years credit for the pre‑sentence period.

In the circumstances, counsel for the appellant and respondent jointly submit, that as a result, a further period of incarceration of four years and four months, concurrent on each count, should be imposed upon the appellant, commencing May 9, 2002.

Counsel for the appellant and respondent jointly recommend that the period of long term supervision to follow the sentence of imprisonment should be eight years in length.

[3] In respect to the long term supervision, it is recommended to the Parole Board that the appellant be provided treatment in accordance with the treatment plan described in the report of Dr. John Bradford of August 15, 2006.

“S. Borins J.A.”

“R. G. Juriansz J.A.”

“H. S. LaForme J.A.”