COURT OF APPEAL FOR ONTARIO

DATE: 20001116

DOCKET: C34990

RE: HER MAJESTY THE QUEEN (Respondent) v. CORY NIGANOBE (Appellant)

BEFORE: OSBORNE A.C.J.O., MOLDAVER and GOUDGE JJ.A.

COUNSEL: Jonathan Dawe

For the appellant

Erin McCarthy

For the respondent

HEARD: November 15, 2000

On appeal from the sentence imposed by Justice L. Whalen on June 26, 2000.

E N D O R S E M E N T

[1] We are not persuaded that the trial judge committed any errors in principle in arriving at the sentence he imposed. But even if he did, we think that the sentence of 15 months imprisonment to be followed by 18 months probation was entirely fit. One of the terms of probation requires the appellant to "reside on the Mississauga First Nations Reserve at an address to be specified and reported to the probation officer and not changed except with the approval of the probation officer".

[2] The Crown concedes that that condition ought to be varied and in its place the following condition substituted "that the appellant shall reside at a residence to be approved by the probation officer". We agree that that is an appropriate variation and would accordingly vary the sentence to that extent.

[3] Accordingly, leave to appeal sentence is granted to give effect to this variation. In all other respects, the appeal against sentence is dismissed.

"A.A. Osborne A.C.J.O.

"M. Moldaver J.A."

"S.T. Goudge J.A."