COURT OF APPEAL FOR ONTARIO
DATE: 20000511
DOCKET: C32967
McMURTRY C.J.O., MORDEN AND CHARRON JJ.A.
B E T W E E N : )
) Timothy E. Breen
HER MAJESTY THE QUEEN ) for the appellant
)
Respondent )
)
- and - ) Tina Yuen
) for the respondent
C. D. )
)
Appellant )
) Heard: March 23 and 24, 2000
Appeal from conviction for perjury by Mr.Justice Zabel and,
alternatively, from the sentence imposed.
BY THE COURT
[1] The appellant appeals from his conviction for perjury and,
alternatively, from the sentence of one year imprisonment imposed
on the conviction. The sentence was directed to be served
consecutively to a sentence then being served of four years and
eight months on three convictions of sexual assault.
[2] The alleged false statement made with intent to mislead was
contained in the appellant’s affidavit sworn on his application
for release pending the hearing of his appeal from the sexual
assault convictions. The trial judge found, beyond a reasonable
doubt, that the appellant committed perjury in the following
statement in the affidavit:
Both employers are aware of the charges against me.....
In his affidavit the appellant said that the “employers” had said
that they had positions for the appellant if he were released
pending appeal.
[3] It was clear on the evidence of the employers in question
that a person facing a sexual assault charge, let alone a person
having been convicted of one, would have been totally
unacceptable as an employee of either employer. One of the
fields of employment was that of a nurse in a group home for
developmentally-handicapped adults and the other was working for
a community-based nursing service providing home care.
[4] The sole ground of appeal from the conviction is that the
judgment is unreasonable.
[5] We are satisfied that there was ample basis on the evidence
for the trial judge to find that, in making the statement, the
appellant intended the court to understand that the two employers
knew that he had been convicted of the sexual assault charges and
that, having this knowledge, they were prepared to give him
employment. The conclusion that it was a false statement made
with intent to mislead is clearly supported by the evidence.
[6] With respect to the appeal from sentence, the appellant
submits that the sentence of one year imprisonment to be served
consecutively to the existing sentence is outside of the
appropriate range having regard to the principle of totality.
[7] Perjury is a serious offence. As has been said in many
cases, it strikes at the heart of the administration of justice.
In the present case, it was committed for the intended personal
benefit of the appellant: his release from custody pending his
appeal to this court. We recognize that the offence can be
committed in a graver setting, for example, in giving evidence in
a trial of a serious offence, in which case the sentence would,
generally, be heavier.
[8] It is not suggested that the reasons for sentence reflect
any error in principle. While the sentence might well have been
for a shorter term and still be within the acceptable range, we
are not persuaded, taking into account the principle of totality,
that it is demonstrably unfit.
[9] In light of the foregoing reasons, the appeal from
conviction is dismissed. Leave to appeal sentence is granted,
but the appeal is dismissed.
Released: May 11, 2000
“R. McMurtry C.J.O.”
“J.W. Morden J.A.”
“Louise Charron J.A.”