COURT OF APPEAL FOR ONTARIO

DATE: 20000713

DOCKET: C34019

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) v.
D.S. (Respondent)

BEFORE: LASKIN, FELDMAN and O’CONNOR JJ.A.

COUNSEL: Randy Schwartz
for the appellant

Owen Haw
for the respondent

HEARD: June 28, 2000

On appeal from the sentence imposed by Baldock J. dated March 10,
2000

E N D O R S E M E N T

[1] The Crown, through inadvertence, failed to disclose to the
sentencing judge the appellant’s breach of recognizance. That
breach went to a crucial issue on sentence: whether the appellant
continued to pose a danger to the safety of young children.

[2] The fresh evidence filed by the Crown, outlining the breach
of recognizance, together with the other aggravating factors in
this case persuades us that a conditional sentence of 6 months
was unfit. The other aggravating factors include the following:
the appellant was in a position of trust when he committed the
offence; the sexual abuse was invasive as it involved fellatio;
and the abuse has seriously affected the young victim.

[3] Although there were some mitigating factors including the
appellant’s plea of guilty and his disclosure of the second
incident, they do not diminish the need for a custodial sentence.
Rehabilitation was an important consideration in this case but,
in our view, the paramount sentencing principles were
denunciation and deterrence.

[4] The appellant has already served 3-1/2 months of his
conditional sentence for which the Crown acknowledges that the
appellant should receive some credit. The Crown asked for a
sentence of 3 to 4 months’ imprisonment from today’s date.

[5] We are of the view that the Crown’s position at trial, which
the Crown on appeal, fairly, has reflected in his position before
us, was unduly lenient. But for the Crown’s position, we would
have imposed a longer jail term for the appellant’s conduct.
However, in light of the Crown’s position, we impose a sentence
of 4 months imprisonment effective today. We note that a 4-month
term will not materially interfere with the appellant’s treatment
program.

[6] Accordingly, leave to appeal sentence is granted, the appeal
is allowed and the 4-month term of imprisonment is imposed
effective today.

Signed: “John Laskin J.A.”
“K. Feldman J.A.”
“Dennis O’Connor J.A.”