Court of Appeal for Ontario
Citation: R. v. Butler, 2010 ONCA 216 Date: 2010-03-18 Docket: C50862
Between: Her Majesty the Queen (Respondent) and James William Butler (Applicant/Appellant)
Before: Blair, LaForme JJ.A. and Durno J. (Ad Hoc)
Counsel: L. Strezos, duty counsel Holly Loubert, for the respondent
Heard: March 17, 2010
On appeal from the judgment of Justice G. Mark Hornblower of the Ontario Court of Justice dated April 27, 2009.
Appeal Book Endorsement
1On their admissions at trial, Mr. Butler and Ms. Hammond were co-participants in a scheme to defraud an estate through proceedings in Small Claims Court based on forged documents. They plead guilty. Mr. Butler received an 18-month conditional sentence plus 12 months’ probation – a sentence considerably longer than the 90-day conditional sentence imposed on Ms. Hammond (and upheld here in a companion endorsement). Unlike Ms. Hammond, however, Mr. Butler has a lengthy criminal record including convictions for theft, fraud and uttering forged documents. Although there was a gap between the commission of this offence and the offences comprising the record, the sentencing judge took this into account.
2We can find no error in principle in the judge’s disposition nor do we think the sentenced imposed was demonstrably unfit. This was a serious offence involving an attempted fraud on an estate through the use of forged documents and utilizing the courts as an instrument of the fraud. The public interest required a sharp sentence which the sentencing judge chose to implement through a conditional sentence to be served in the community rather than actual incarceration. We see no error nor do we think it appropriate to re-adjust the sentence on the basis that Mr. Butler has been on bail pending the disposition of the appeal.
3Accordingly, leave to appeal sentence is granted but the sentence appeal is dismissed.
4Mr. Butler has abandoned his appeal from conviction. It is therefore dismissed as abandoned.