DATE: 20000922
DOCKET: C29956
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent)
v. ROBERT HACKERT (Appellant)
BEFORE: ROSENBERG and MOLDAVER JJ.A. and SIMMONS J. ad hoc
COUNSEL: Colin L. Campbell,
for the appellant
Kevin Wilson,
for the respondent
HEARD: September 19, 2000
On appeal from his conviction by the Honourable Mr. Justice Robert Reilly on March 11, 1998 and from the sentence imposed on May 14, 1998
E N D O R S E M E N T
[1] With respect to conviction, we agree with the result reached by the trial judge that the authorizations were valid and that the appellant was not “known” within the meaning of ss. 185 and 186 of the Criminal Code. As well, we are satisfied that the search warrant was properly granted. Because of our conclusion on this aspect of this appeal, we did not need to consider the submissions by counsel for the respondent that the trial judge erred in following the decision of Salhany J. in R. v. Dickson concerning the validity of s. 492.2 of the Criminal Code. We should therefore not be taken as having approved of that decision, particularly in light of the decision of the Supreme Court of Canada in R. v. Wise (1992), 1992 125 (SCC), 70 C.C.C. (3d) 193 at 229.
[1] Accordingly, the appeal from conviction is dismissed.
[2] With respect to sentence, the respondent fairly concedes that, in light of R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at 485-86, the trial judge erred in principle in holding that a conditional sentence was not available for these types of offences.
[3] In our view, particularly given the appellant’s background, the passage of time since the commission of the offences, his conduct since that time, and the time already served in custody, this is a proper case for a conditional sentence.
[4] Accordingly, leave to appeal sentence is granted, the appeal is allowed, and the sentence on counts 3 and 5 is reduced from nine months less one day to seven months. The sentence on count 1 will remain at fifteen months consecutive, for a total of twenty-two months starting from today, to be served in the community on the following optional conditions in addition to the mandatory conditions:
He shall remain on his farm except for medical purposes or with the consent of his supervisor or for the purpose of performing community service; and
He shall perform two hundred hours of community service.
[5] The person releasing the appellant under conditional sentence will comply with the provisions of s. 742.3(3) of the Criminal Code.
(signed) “M. Rosenberg J.A.”
(signed) “M. J. Moldaver J.A.”
(signed) “J. Simons J. ad hoc”