COURT OF APPEAL FOR ONTARIO
DATE: 20000323
DOCKET: C31540
McMURTRY C.J.O., MOLDAVER and GOUDGE JJ.A.
B E T W E E N :
FRED JAMES PRICE
(Appellant)
and
HER MAJESTY THE QUEEN
(Respondent)
Miriam Saksznajder
for the appellant
Philip Downes
for the respondent
Heard: February 1, 2000
On appeal from conviction by Thompson J. without a jury on
September 15, 1997 and from sentence on October 23, 1997.
McMURTRY C.J.O.:
[1] The appellant, together with one Jerome Montgomery, was
convicted by the Honourable Mr. Justice Thompson without a jury
on September 15, 1997 of robbery while armed with a weapon,
namely a handgun.
[2] The appellant was sentenced on October 23, 1997 to a term of
imprisonment for nine years. The appellant appeals from both
conviction and sentence.
Overview
[3] On Saturday, September 7, 1996 at about noon, two armed men
robbed a jewellery store of a quantity of jewellery. The armed
men then exited the store and entered a waiting vehicle
registered to the appellant. Shortly thereafter this vehicle was
found parked in front of the appellant’s residence and the
appellant was arrested nearby. The other two accused Jerome
Montgomery and one Vincent Price, were arrested later that
evening. The three men arrested were first cousins. One gun was
recovered at the house of Vincent Price’s girlfriend and a second
gun was recovered at the appellant’s residence following a
warrantless search.
[4] Vincent Price entered a guilty plea and was the Crown’s
principal witness in the trial against the appellant and Jerome
Montgomery, both of whom advanced alibi defences.
Warrantless Search
[5] Vincent Price told the police that one of the guns used in
the robbery was in the appellant’s apartment. Subsequent to the
appellant’s arrest on September 7, 1996, two officers forcefully
entered his residence without a warrant in a search for persons.
An officer was placed at the door to ensure the security of the
scene as a further search was anticipated. The apartment was
secured from 12:42 p.m. on September 7, 1996 to approximately
7:00 a.m. on September 8, 1996, at which time a purported
shortage of police personnel resulted in the officers’
withdrawal.
[6] At 1:50 p.m. on September 8, 1996 the officer in charge of
the investigation, Sergeant Jessop, authorized the warrantless
search of the appellant’s residence which had been left unsecured
for six hours. He testified that he did not wish to request his
detectives to attempt to “put a search warrant together” and
remain on duty for another four to five hours when they had
already been on duty for twenty-four hours. Sergeant Jessop also
believed that it would have been difficult to locate a Justice of
the Peace on a Sunday afternoon. As a result of the warrantless
search, a Luger P38 nine mm handgun with a clip and ammunition
was located in the appellant’s apartment, hidden in a chair.
Testimony of the Appellant and the other Alibi Evidence
[7] The appellant testified that he lived alone in an apartment
and that his mother and young siblings resided close by. On the
day of the robbery, the appellant drove to a pharmacy and en
route he saw a man that he recognized and offered him a ride as
it was raining. He had not seen this man for some time, nor did
he make efforts to determine his identity. He arrived back home
at around 12:00 p.m. to find that the other two accused had
arrived unexpectedly. The appellant agreed to lend them his car
and he gave them his key chain which included keys to his home
and apartment. After Montgomery and Price left, the appellant
went for his weekly Saturday haircut. The part-owner of the
salon, Dave Butler, who is also a friend of the appellant,
advised him that he could not be accommodated. The appellant
then walked to his mother’s home, arriving between 12:10 and
12:20 p.m., where he spoke to his brother Travis. As he was
walking home he saw a friend, Sandy Butler, and her boyfriend on
her porch and spoke with them for about five minutes. The other
two accused were back at his apartment upon his return. They
returned his keys and said that they would see him later.
Shortly thereafter he exited his building and was arrested. The
appellant denied any involvement in the robbery or in its
planning. He also testified that he did not know how the handgun
had become concealed in the chair in his apartment.
[8] The appellant’s sister Danielle testified that on September
7, 1996, at about 11:45 a.m. she saw the appellant driving his
automobile. She initially stated that no one else was in the car
and then said that there were two people other than the appellant
in the car. She ultimately adopted her statement to the police
that the only passenger was a bald man.
[9] The appellant’s brother Travis testified that he saw the
appellant on September 7, 1996 between 11:00 and 11:30 a.m. enter
a corner store by his home and then return to his car. At 12:15
p.m. the appellant told him that if their mother was looking for
him to tell her he had gone to Detroit.
[10] The appellant’s friend, Sandy Lee Butler, testified that she
had seen the appellant at 12:15 p.m. on September 7, 1996. She
and her boyfriend were on her porch when the appellant walked by,
away from the direction of his home. They did not speak,
although she waved to him and he waved back. She told the police
that she remembered the incident as she had read an article in
the paper about the robbery the next day, on Sunday, when in fact
there was no Sunday paper. She further admitted in May, 1997
when she spoke to the police that she did not recall the day of
the week that she saw the appellant, although she remembered it
at trial.
Grounds of Appeal as Against Conviction
(i) That the trial judge erred in admitting evidence
seized from the appellant’s residence pursuant to a
warrantless search.
(ii) That the trial judge erred, having disbelieved
the appellant’s alibi, in concluding that the
appellant’s alibi was concocted, and using this as
affirmative evidence of guilt, in the absence of
evidence establishing that the alibi was deliberately
fabricated and that the appellant was a party to the
fabrication.
(iii) That the trial judge erred in concluding that
the evidence of Vincent Price, reviewed in its
totality, was capable of supporting a conviction.
Warrantless Search
[11] The respondent Crown conceded that the appellant’s section 8
Charter rights were violated by the warrantless search.
[12] In admitting the evidence of the finding of the gun in the
appellant’s apartment, the trial judge noted that Sergeant Jessop
“readily agreed, upon my questioning, that he could have ordered
an officer to attend the location and maintain security while the
appropriate steps were taken to obtain a search warrant”.
[13] The trial judge also stated as follows:
There is little question the warrantless entry
into Price’s apartment was a breach and a
serious one as it involved the entry into a
private residence. There is also no question
that the gun was discoverable.
In my view the exclusion of the evidence
would have a negative effect upon the
administration of justice. This evidence is
essential to the prosecution of this case
against Fred Price. It is reliable evidence.
The consequences of this case are serious to
the accused.
The test for exclusion under section 24(2) of
the Charter appears to be whether the
conscience of all fair minded people in the
community would be shocked by the actions of
Mr. Jessop. In my view they would not be.
If these fair minded people were apprised of
the facts of this case and were asked if the
exclusion of this gun, allegedly involved in
an armed robbery where shots were fired in
the presence of a number of members of the
public, would create a negative view of the
administration of justice, I believe they
would answer “yes”.
[14] In R. v. Silveira (1995), 1995 89 (SCC), 97 C.C.C. (3d) 450, the Supreme
Court of Canada considered the issue of exigent circumstances
where police officers entered an accused’s home without a search
warrant to secure the premises until the arrival of a search
warrant.
[15] Writing for the majority of the court, Cory J. referred to
R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1, in considering the
factors to be taken into account in relation to s. 24(2) of the
Charter in determining whether evidence should be admitted or
excluded under s. 24(2) of the Charter. These factors are:
(a) does the admission of the evidence affect the
fairness of the trial?
(b) how serious was the Charter breach?
(c) what would be the effect on the system’s repute in
excluding the evidence?
[16] It is conceded by the appellant in this case that the
admission of the evidence of the finding of the handgun would
not affect the fairness of the trial. It existed prior to the
search and would inevitably have been discovered upon a search of
the premises.
[17] In Silveira, Cory J. found it “significant that the police
did not take any steps to search the premises before the warrant
arrived”.
[18] In relation to the seriousness of the Charter violation,
Cory J., at para. 147 summarized the factors to be considered in
assessing the gravity of the breach, as follows:
- was the violation inadvertent or committed in good faith or
was it willful, deliberate and flagrant;…
- was the violation motivated by a situation of urgency or
necessity;
- were there other investigative means available to the police
which would not infringe the Charter of Rights.
[19] In considering the nature of the breach in Silveira, Cory J.
at para. 148 made the following observation:
The police, without warrant or authority, entered
a dwelling-house… It is hard to imagine a more
serious infringement of an individual’s right to
privacy... The unauthorized presence of agents of
the state in a home is the ultimate invasion of
privacy. It is the denial of one of the fundamental
rights of individuals living in a free and democratic
society… This is why for centuries it has been
recognized that a man’s home is his castle.
and at para. 149:
The entry onto the property by the police was
thus a very serious breach of a Charter
right. It remains to be seen if there are
other factors which can mitigate the
seriousness of the Charter violation.
[20] In Silveira, Cory J. found that the violation was committed
in good faith and motivated by circumstances of urgency or
necessity. He held at para. 151 that there was “strong and
persuasive evidence upon which the trial judge and majority of
the Court of Appeal could properly find that there were exigent
circumstances” which required the police to enter the premises to
protect the evidence. Cory J. emphasized at para. 152 that
notwithstanding the fact that the police had a serious and valid
concern pertaining to the preservation of evidence, that as “a
result of this case, police officers will be aware that to enter
a dwelling-house without a warrant, even in exigent
circumstances, constitutes such a serious breach of Charter
rights that it will likely lead to a ruling that the evidence
seized is inadmissible.”
[21] In R. v. Golub (1997), 1997 6316 (ON CA), 117 C.C.C. (3d) 193 (Ont. C.A.), the
accused had been charged with several offences. The police
seized the accused’s rifle from his home in the course of a
warrantless search conducted immediately after his arrest just
outside of his home. At trial, the accused successfully moved to
exclude the rifle from evidence, arguing that it was seized in
violation of his s. 8 rights and that s. 24(2) of the Canadian
Charter of Rights and Freedoms mandated its exclusion. In
writing for this court, Doherty J.A. stated that the police
searched the residence because they perceived a threat to their
safety and the safety of others. In his view, the police acted
in good faith and assuming the police violated the accused’s s. 8
rights when they entered and searched the apartment, the rifle
should not have been excluded from evidence under s. 24(2) of the
Charter.
[22] At para. 59, Doherty J.A. stated:
If there was a violation of s. 8, it flowed from
an honestly held mistaken belief by the police
that the danger inherent in the circumstances
justified the entry into and the search of the
home. That assessment had to be quickly made as
events were unfolding. In my view, the police
conduct, at worst, reveals an error in judgment
and in no way indicates any disrespect for the
appellant’s constitutional rights.
[23] Doherty J.A. emphasized the importance of constitutional
rights in the context of s. 24(2) at para. 60, as follows:
In addressing the effect of the exclusion of the
evidence on the repute of the administration of
justice, I bear in mind the comments of Iacobucci
J. in R. v. Burlingham (1995), 1995 88 (SCC), 97 C.C.C. (3d) 385
(S.C.C.) at 408:
… we should never lose sight of the fact
that even a person accused of the most
heinous crime… is entitled to the full
protection of the Charter. Short-
cutting or short-circuiting those rights
affects not only the accused, but also
the entire reputation of the criminal
justice system. It must be emphasized
that the goals of preserving the
integrity of the criminal justice system
as well as promoting the decency of
investigatory techniques, are of
fundamental importance in applying s.
24(2).
Iacobucci J. reveals the heart of the
third part of the s. 24(2) inquiry in this
passage. The moral authority to apprehend
and punish those who commit crimes rests on
the community’s commitment to the rule of
law. Convictions procured by state
violations of our most fundamental law lack
that moral authority. Respect for the rule of
law and the long-term viability of the
justice system suffers where the police
engage in “short cuts” or fail to respect the
constitutional rights of those they encounter
in the course of the exercise of their
duties. The long-term harm to the justice
system is not worth the short-term gain made
by the admission of evidence which was
obtained in a manner that ignores the rule of
law.
[24] The trial judge in this appeal described the warrantless
entry into the appellant’s apartment as a serious one. He
concluded that as the “gun was discoverable … the exclusion of
the evidence could have a negative effect on the administration
of justice. The evidence is essential to the prosecution against
Fred Price.”
[25] In their investigation, the police admittedly engaged in
“short-cuts”. The officer in charge was, of course, aware of the
requirement of a search warrant. He ordered the warrantless
search because he did not want to burden his officers with
additional duties after having worked for a number of hours
without sleep, given the difficulty of locating a Justice of the
Peace on a Sunday. In my view, these circumstances do not
mitigate the seriousness of the breach. To the contrary, they
lead one to conclude that the violation of s. 8 was deliberate,
flagrant and one not committed in good faith. The violation was
not merely of a technical nature. It was not motivated by a
situation of urgency or necessity. It would have been quite
feasible for the police to secure the premises until a search
warrant had been obtained. The fact that the trial judge
regarded the evidence as “essential to the prosecution of the
appellant” at the time that the evidence was admitted was not a
relevant factor that should be considered in the mitigation of
the seriousness of the Charter breach.
[26] Having considered the factors outlined by Cory J. in
Silveira, it is my view that there were no relevant facts which
could mitigate the seriousness of the Charter breach. It is,
therefore, my conclusion that the trial judge made an error in
his application of the tests for exclusion under s. 24(2) of the
Charter.
[27] However, I agree with the submission of the respondent that
there “is a tension between the reasons on the voir dire and the
reasons for judgment as to the importance of the gun to the
ultimate finding of guilt”. While in the voir dire the trial
judge found that the gun was “essential to the prosecution of
this case against Fred Price”, in his reasons for judgment he
found that “the fact that the black Luger type pistol was found
is not seminal in my determination or findings in this case. It
is just merely one of the circumstances that went into the hopper
when I considered all of the evidence.”
[28] The diminished importance of the finding of the gun in the
reasons for conviction can be explained by the fact that at the
time of the voir dire the trial judge had heard less than half of
the evidence in the case. The Crown’s case was largely dependant
on the credibility of Vincent Price’s evidence. The acceptance
of Vincent Price’s evidence by the trial judge would indicate
that the appellant would have been convicted if the gun had not
been admitted.
[29] This is, therefore, an appropriate case for the application
of the proviso.
Alibi Evidence
[30] In his reasons for judgment, the trial judge made the
following observation with respect to the alibi evidence:
If I find the alibi unbelievable or untruthful, then
I do not have to consider it in deciding if an accused
is guilty or not guilty. If, on the other hand, I
find beyond a reasonable doubt that the alibi was
false, fabricated and was concocted to mislead or
deceive me, then I am able to draw an inference
against that accused that he is guilty.
[31] After reviewing the alibi evidence in relation to both the
appellant and his co-accused, the trial judge rejected the
evidence tendered by and on behalf of the appellant. He
commented specifically on the following facts: that the appellant
did not attempt to find the man that he drove the morning of the
robbery, that the appellant’s friend, Dave Butler, did not give
evidence about seeing the appellant at the hair salon and that
the witness Sandy Butler’s evidence contradicted that of the
appellant in relation to the direction that he was walking and
that she did not recall any conversation with the appellant, as
he testified.
[32] The trial judge concluded by stating that the
inconsistencies led him “to conclude beyond a reasonable doubt
that I cannot believe or have any faith in that alibi. In fact,
it is clear to me beyond a reasonable doubt that the alibi was
false and was concocted to mislead or deceive me and, therefore,
it allows me to draw the adverse inference against Fred Price.”
[33] The appellant submits that it is only where there is
evidence from which it can be reasonably inferred that the alibi
evidence was deliberately fabricated and that the accused was a
party to the fabrication that there may be the basis from which
an inference of consciousness of guilt may be drawn.
[34] In R. v. Coutts (1998), 1998 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.),
Doherty J.A., writing for the court, discusses the distinction
between the testimony of an accused and other witnesses which is
disbelieved and testimony which can be found to be concocted in
an effort to avoid culpability. The former has no evidentiary
value while the latter can constitute circumstantial evidence of
guilt.
[35] In Coutts, at para. 13 Doherty J.A. refers to the “oft-
quoted” passage from R. v. Mahoney (1979), 1979 82 (ON CA), 50 C.C.C. (2d) 380
(Ont. C.A.) where Brooke J.A. stated at p. 389:
If the jury accepted the evidence of the Crown witnesses
that the appellant was the killer, disbelief of the appellant’s
denial was inevitable, but that disbelief could not be treated as
an additional item of circumstantial evidence to prove guilt. In
my view, the jury ought not, routinely, to be instructed with
respect to the inferences that may be drawn from the fabrication
of a false alibi in the absence of a proper basis for the
instruction, as for example, where there is extrinsic evidence of
fabrication, or where the appellant has given different versions
as to his whereabouts, one of which must be concocted. [Emphasis
added.]
[36] In R. v. Coutts at para. 15-16, Doherty J.A. remarks on this
distinction as follows:
This distinction between statements which are disbelieved
and, therefore, rejected and those which can be found to be
concocted and capable of providing circumstantial evidence of
guilt cannot be justified as a pure matter of logic. In many, if
not most cases, the inference of concoction flows logically from
the disbelief of an accused’s statements or testimony. The
distinction made in Mahoney is, however, fully justified and,
indeed, essential to ensure that the trier of fact properly
applies the burden of proof in cases where statements of an
accused are tendered or an accused testifies. If triers of fact
were routinely told that they could infer concoction from
disbelief and use that finding of concoction as evidence of
guilt, it would be far too easy to equate disbelief of an
accused’s version of events with guilt and to proceed
automatically from disbelief of an accused to a guilty verdict.
That line of reasoning ignores the Crown’s obligation to prove an
accused’s guilt beyond reasonable doubt. By limiting resort to
concoction as a separate piece of circumstantial evidence to
situations where there is evidence of concoction apart from
evidence which contradicts or discredits the version of events
advanced by the accused, the law seeks to avoid convictions
founded ultimately on the disbelief of the accused’s version of
events: R. v. Tessier (1997), 1997 3475 (BC CA), 113 C.C.C. (3d) 538 (B.C.C.A.), per
Ryan J.A. at 556, per Southin J.A. at 561; R. v. Pleich (1980),
1980 2852 (ON CA), 55 C.C.C. (2d) 13 (Ont. C.A.).
The principle set down in Mahoney and
repeatedly accepted by this court is sound.
An instruction that the trier of fact may
find that a statement made by an accused or
the testimony of an accused is concocted and,
therefore, capable of constituting
circumstantial evidence of guilt should only
be given where there is some evidence of
actual concoction. Evidence that supports
the case for the Crown, which if accepted
would result in the rejection of accused’s
evidence as unworthy of belief, should not be
equated with evidence of concoction.
[37] It is my view that the trial judge erred in law in finding
that the Crown had proven that the alibi evidence had been
concocted and that therefore he was entitled to “draw the adverse
interest against Fred price”. The trial judge’s conclusion in
this regard was almost entirely based on his rejection of the
appellant’s evidence. He also referred to the fact that the
appellant did not attempt to find the person that he allegedly
drove the morning of the robbery, that the hairdresser Dave
Butler was not called as a witness and that there was some
inconsistency between the evidence of the appellant and the
witness Sandy Butler in relation to their encounter the same
morning.
[38] Trial judges should be very cautious in coming to the
conclusion of concoction in the absence of some significant
extrinsic evidence. While there may have been some evidence
relevant to the issue of concoction, it was speculative at best
and certainly did not go far enough to support a finding of
concoction. Consistent with Mahoney and Coutts, the trial judge
ought not to have drawn an inference of guilt that was based
largely on his disbelief of the appellant’s evidence.
[39] The Crown submits in its factum that “in circumstances where
the accused himself is offering an alibi witness who directly
contradicts the accused’s own alibi evidence, then the inference
of concoction must at least be available to the trier of fact as
circumstantial evidence of guilt.” I have considerable
difficulty with this statement standing by itself as there could
be many alibi witnesses who contradict an accused’s own alibi
evidence for the simple reason that there are different
recollections of events which are related to the frailty of
individual memory, rather than to any deliberate concoction.
[40] The prosecution’s evidence in this case relied almost
entirely on the credibility of Vincent Price. The trial judge
accepted Vincent Price’s evidence. He stated that Vincent Price
“was believable, reliable and credible”. The acceptance of this
evidence makes the prosecution’s case very strong and, in my
view, it made the conviction of the appellant inevitable.
[41] In my view, there has been no substantial wrong or
miscarriage of justice as a result of the trial judge’s error.
Did the trial judge caution himself adequately on the danger
of relying on the evidence of Vincent Price?
[42] The appellant submits that a conviction could not be founded
on the evidence of Vincent Price unless it was confirmed in
material respects by other reliable evidence.
[43] In relation to Vincent Price’s evidence, the trial judge
instructed himself as follows:
As a result, I have scrutinized the evidence of
Vincent Price carefully and recognize that I do not
have to find other evidence confirming or supportive
of his evidence before I can rely on his testimony
if I am satisfied that his testimony was truly and
accurately given. I accept the statement that it is
dangerous to rely on such testimony unless there is
some support for it.
[44] In his reasons for judgment the trial judge further stated:
[T]he evidence points unerringly at him [the appellant]
as a participant. I have re-visited the Vetrovec decision
and find that all of the circumstances of this case allow
me to accept Vincent Price’s evidence that Fred Price was
the driver of the car. On the evidence I accept, which is
that of Vincent Price, I do so notwithstanding his lies and
apparent dislike of Fred Price, as well as the fact that he
is an unsavoury witness.
[45] The trial judge mentioned the Vetrovec decision a second
time when he stated “Again, I have charged myself with respect to
Vetrovec respecting Vincent Price’s evidence regarding Jerome
Montgomery…”.
[46] It is obvious that the trial judge was alive to the indicia
of unreliability attaching to Vincent Price. There was no
obligation on him to comment on every aspect of the evidence as
it related to the testimony of Vincent Price. As was stated in
R. v. Morrisey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at 204 by this court:
A trial judge’s reasons cannot be read or analyzed if
they were an instruction to a jury... They are not
intended to be, and should not be read as a verbalization
of the entire process engaged in by the trial judge in
reaching a verdict.
[47] There is no merit to this ground of appeal.
Sentence Appeal
[48] The appellant concedes that the offence for which he was
convicted carries a minimum punishment of imprisonment for a term
of four years.
[49] The appellant submits that the trial judge failed to give
adequate consideration to the following factors in arriving at
the appropriate sentence:
(a) The appellant’s record did not include any offences of
violence and also revealed that the appellant had never
previously received an incarceratory sentence;
(b) The appellant’s positive pre-sentence report;
(c) Principles of parity, namely that:
(i) The co-accused Vincent Price, who had a
record consisting of eleven convictions, had been
designated a “habitual offender” and received a
sentence of five years on a guilty plea.
(ii) The co-accused Jerome Montgomery, who had
received a five-year sentence for possession of a
narcotic, received a sentence of seven-and-a-half
years, in addition to the year and six weeks of pre-
trial custody he had already served, for a global
sentence of nine years, nine months.
[50] The pre-sentence report indicated that the appellant, who
was 28 years old at the time, has a close relationship with his
mother and all of his siblings. The appellant’s mother stated
the appellant was never a behavioural problem during his early
childhood or during his teenage years and that he had no
emotional, alcohol or drug related problems.
[51] The appellant had completed grade 12 and intended to return
to school to complete a Tool and Die program.
[52] The appellant and his girlfriend were expecting a child in
1988 and he apparently maintains a close relationship with a
daughter from another relationship.
[53] The trial judge described the robbery as “well planned and
orchestrated” and that there were “four people in the store who
were terrorized in the extreme”. The trial judge stated that:
None of us in this room who have not been subjected to the
terror of being involved in a robbery, where assaultive
behaviour took place, threats of bodily injury or death
were made, guns were brandished and shots were fired in
close proximity to them, can know the terror and upset
those activities created on that day.
[54] The appellant was not in the store during the robbery. He
was the driver of the car that transported all three accused to
and from the robbery. There was no evidence that the appellant
fired any of the shots.
[55] It would appear that the trial judge was of the view that
both the appellant and the co-accused Montgomery should be
treated identically in so far as sentence was concerned. In my
view, in so doing the trial judge erred in principle, given the
disparity between the criminal records of the two and the
different roles that the appellant and Montgomery performed with
respect to the robbery. Although the appellant may have played a
significant role in the planning of the robbery, he was not
directly involved in the assaultive behaviour and threats of
bodily harm which, according to the victim impact statements, so
traumatized those present in the store at the time of the
robbery. Nor is there any evidence that he either countenanced
or envisaged the violence that occurred.
[56] I am also concerned with the principle of parity, given the
accused Vincent Price’s serious criminal record. While Vincent
Price was entitled to a lesser sentence by reason of his plea of
guilty and his co-operation with the police, it was harsh and
excessive to sentence the appellant to a term of imprisonment of
almost twice that of Vincent Price.
[57] In all of the circumstances. I would grant leave to appeal
the sentence and vary the sentence to one of six and a half
years.
Conclusion
[58] The appeal as to conviction is dismissed. The appeal as to
sentence is allowed and the sentence is varied as stated above.
“R. R. McMurtry C.J.O.”
“I agree. M. J. Moldaver J.A.”
“I agree. S. T. Goudge J.A.”
Released: March 23, 2000
“RRM”
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