Court of Appeal for Ontario
Date: 2017-01-10 Docket: C62712
Judges: Feldman, Rouleau and van Rensburg JJ.A.
Between
Her Majesty the Queen Respondent
and
Robin Barkhouse Appellant
Counsel
Robin Barkhouse, acting in person Dan Stein, duty counsel Geoffrey Roy, for the respondent
Heard and released orally: January 10, 2017
On appeal from the sentence imposed on August 26, 2014 by Justice Stephen D. Brown of the Ontario Court of Justice.
Endorsement
[1] This is a sentence appeal. The appellant, an addict-trafficker, was sentenced to 15 months' imprisonment plus two years' probation for the possession of 28 g. of cocaine for the purpose of trafficking. He pled guilty and was admitted into the Halton Drug Treatment Court program. He was expelled from the program after testing positive for cocaine on three occasions, on the last occasion concocting a significant lie about the circumstances of his relapse.
[2] There are three grounds of appeal. It is necessary to address only the first ground that was argued, as in our view there was an error that had a material effect on the appellant's sentence.
[3] We agree with duty counsel that the sentencing judge erred in principle in treating as an aggravating factor the circumstances that led to his ejection from the Drug Treatment Court program, and in particular that he lied to the court and those involved in the program. While his successful completion of the program, or even as the sentencing judge noted, his efforts to comply with the program, might have worked in mitigation of his sentence, he ought not to have been sentenced more severely because he did not fully engage in and in fact lied in the course of the program. The trial judge specifically identified this as a factor in aggravation, and said the appellant was "going to have to pay the price".
[4] Having identified a material error, we turn to the question of a fit sentence.
[5] We have considered all of the relevant circumstances. These include the quantity and nature of the drug, the appellant's guilty plea, his age, his status as a first offender, his addiction, the lack of commercial motive, his history of employment, his strong family and community support, his engagement in rehabilitation efforts while incarcerated, and evidence of a specific treatment plan for his addiction once released. In our view, considering all of the circumstances, a fit sentence is nine months.
[6] We therefore allow the appeal, and substitute for the sentence of 15 months a sentence of nine months' imprisonment. We do not interfere with the other terms of the sentence imposed by the sentencing judge, including the order for two years' probation and the s. 109 order.
"K. Feldman J.A."
"Paul Rouleau J.A."
"K. van Rensburg J.A."
