COURT OF APPEAL FOR ONTARIO

DATE: 20010813
DOCKET: C36396

RE: HER MAJESTY THE QUEEN (Respondent) – and – JASON BURKE (Appellant)

BEFORE: CARTHY AND CHARRON JJ.A. AND McCOMBS J. (AD HOC)

COUNSEL:

David M. Tanovich
For the appellant

Susan Kyle
For the respondent

HEARD: August 9, 2001

On appeal from the sentence imposed by Justice B. M. Kelly dated April 25, 2001.

E N D O R S E M E N T

Released Orally August 9, 2001

[1] The appellant appeals his sentence of nine months plus three years probation in addition to six months of pre-trial custody, which the trial judge treated as equivalent to a sentence of one year. The Crown had sought a sentence of 12 months imprisonment in addition to the pre-trial custody, while the position of the defence was that the appropriate sentence was one of time served plus probation.

[2] The appellant was 19, and had a single prior conviction, registered a year earlier, for failing to comply with a recognizance, for which he had been sentenced to one day imprisonment in addition to 14 days of pre-trial custody. As well he had a prior discharge for possession of marijuana.

[3] The agreed-upon facts were that the appellant had been found hiding in a closet in a vacant Metro Housing apartment, where a party had been in progress with at least fifty people in attendance. He was in possession of a loaded .22 calibre handgun. There were nine bullets in the chamber. A live bullet and a spent cartridge were also in his possession.

[4] Emphasizing the dangerous circumstances surrounding the possession of the loaded handgun, the trial judge concluded that the overriding principle in determining the appropriate sentence was that of general deterrence.

[5] We have heard fresh evidence on the appeal, in the form of an affidavit from the appellant’s mother, which asserts, among other things, that he is remorseful for his actions, and confirms that he intends to return to school in October to continue his education. In order to do so, he must register in person on September 14.

[6] Sentence was imposed on April 25, and the appellant has therefore served about three and one-half months of his nine-month sentence.

[7] We are all of the view that had the trial judge had the additional information before him, he would have placed greater emphasis upon the rehabilitation of the appellant. Accordingly, we are of the view that the interests of justice would be served if the sentence were reduced so that the appellant can return to his studies in the fall. Leave to appeal is granted, and the sentence is reduced to six months imprisonment in addition to the six months of pre-trial custody. The probation order will stand.

[8] The respondent concedes that the lifetime weapons prohibition was imposed without jurisdiction. It is therefore set aside, and a ten year weapons prohibition is substituted, pursuant to s.110(2) of the Criminal Code.

"J.J. Carthy J.A."

"Louise Charron J.A."

"J. McCombs J. (ad hoc)"