COURT OF APPEAL FOR ONTARIO
DATE: 20000601
DOCKET: C33653
RE: HER MAJESTY THE QUEEN (Applicant/Appellant) v.
BJORN FLORES (Respondent)
BEFORE: FINLAYSON, DOHERTY and O’CONNOR JJ.A.
COUNSEL: John McInnes
for the appellant
David E. Harris
for the respondent
HEARD: May 26, 2000
On appeal from the sentence imposed by Madam Justice A.E. Bonkalo
dated January 13, 2000.
E N D O R S E M E N T
[1] This was a very serious offence. Despite the respondent’s
youth (18), his first offender status, the positive pre-sentence
report and his immediate and deep remorse, a significant
custodial term was necessary. The trial judge imposed a sentence
of six months to be followed by two years probation. In our
view, the sentence was “clearly inadequate” and appellate
intervention is warranted.
[2] This court must impose a sentence which is “fit” under the
present circumstances. Those circumstances include:
• The respondent completed his incarceration and was released
• about two months ago.
• All of the other persons involved in the assault, although
• clearly less culpable than the respondent, received non-custodial
• terms.
• The appellant’s psychological state is fragile. He has
• attempted suicide twice, partially as a result of his fear of
• incarceration.
[3] Having regard to the present circumstances, the nature of
the offence and the background of the respondent, a penitentiary
term is not appropriate. The safety of the community would not
be endangered by the respondent serving his sentence in the
community. Although the crime involved extreme violence, it was
an isolated act borne of adolescent jealousy. There is nothing
to suggest that the offender has a propensity for violence or
that he will re-offend. A conditional sentence with the
appropriate terms would be consistent with the fundamental
purpose and principles of sentencing.
[4] The terms of the conditional sentence must be sufficiently
punitive to serve the needs of deterrence and denunciation, while
at the same time assisting in the rehabilitation of the
respondent and the recognition by him of his responsibility for
his actions and his obligations to the community.
[5] Although Crown counsel opposed a conditional sentence, he
did join with counsel for the respondent in suggesting terms
should this court conclude that a conditional sentence was
appropriate. Those terms are reasonable and address the needs
outlined above. They include both a substantial community
service order and significant restrictions on the respondent’s
liberty.
[6] Leave to appeal is granted, the appeal is allowed and the
sentence is varied to a sentence of 18 months to be served in the
community on the terms and conditions set out in the proposed
conditional sentence order filed by counsel.
[7] As Crown counsel points out, this sentence is effective from
January 13, 2000, the date on which the initial sentence was
imposed at trial. The probation order stands and takes effect
upon completion of the conditional sentence.