COURT OF APPEAL FOR ONTARIO

DATE: 20000818

DOCKET: C34240

RE: HER MAJESTY THE QUEEN (Respondent) –and– MICHEL PATENAUDE (Appellant)

BEFORE: FINLAYSON, GOUDGE and FELDMAN JJ.A.

COUNSEL: Gregory Lafontaine, for the appellant

Sandra Kingston, for the respondent

HEARD: August 10, 2000

Application for leave to appeal and, if granted, an appeal from the dismissal of the appellant’s summary conviction appeal by The Honourable Mr. Justice Jean A. Forget dated May 9, 2000.

E N D O R S E M E N T

[1] The appellant was convicted by His Honour Judge Renaud of the Ontario Court (Provincial Division) of two counts of assault and one count of uttering death threats. He was given a 90 day conditional sentence for the first assault count and two concurrent 150 day custody sentences for the remaining two counts. Each count carried with it a three year period of probation. The appellant appealed his convictions and sentences to the Summary Conviction Appeal Court. The appeals were dismissed. He now asks for leave to appeal and if leave is granted appeals both conviction and sentence to this court.

[2] The trial judge in this case unfortunately permitted the parties to introduce extended evidence relating to the validity of a claim that the complainant had to some property of the appellant. While this issue was collateral to the criminal charges against the appellant of assault and uttering a death threat, it was tangentially relevant to the credibility of the complainant because the appellant alleged that her entire testimony was a fabrication designed to permit her to acquire the property in question. However, the detail of the conflicting property claims took over the criminal case to the point where it appeared to be central to the trial.

[3] The complaint made by the appellant to the Summary Conviction Appeal Court was that the trial judge’s findings of credibility in his ill-advised attempt to resolve the property ownership issue tainted his views of the credibility of the appellant on the criminal charges. The Summary Conviction Appeal Court judge declined to revisit the collateral issue and accepted that the findings of credibility made by the trial judge were properly within his competence.

[4] This is an appeal from the Summary Conviction Appeal Court. We do not think that complaints about the Summary Conviction Appeal Court judge’s refusal to revisit findings of credibility on this overextended collateral issue raise any issue of law in this court. Were it not for the issue of sentence, we would not allow leave to appeal.

[5] As to the issue of sentence, it is conceded that the sentences below are blended and, consequently, illegal.

[6] The appellant asks for a conditional sentence but the trial judge was not satisfied that a conditional sentence would satisfy the principle of deterrence given the escalation of the assaultive behaviour. We agree with that conclusion. In our view, a proper sentence would be 90 days in custody on each of the counts to be served concurrently. We also add a recommendation that there be a temporary absence for work purposes. The probation order made by the trial judge is to stand.

[7] Accordingly, leave to appeal is granted, the appeal against conviction is dismissed but the appeal against sentence is allowed in order to give effect to the disposition set out in the reasons above.

Signed: “G.D. Finlayson J.A.”

“S.T. Goudge J.A.”

“K. Feldman J.A.”