DATE: 20010314

DOCKET: C34408

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. KIRK SHAKES (Appellant)

BEFORE: CARTHY, LASKIN and ROSENBERG JJ.A.

COUNSEL: David M. Tanovich, for the appellant

Moiz Rahman, for the respondent

HEARD: March 13, 2001

On appeal from the sentence imposed by Justice R. Khawly on June 9, 2000

O R A L E N D O R S E M E N T

[1] We agree with the appellant that the mechanical application of the two-stage process resulted in an error in principle. As a result, on the question of whether or not there should be a conditional sentence, the trial judge failed to take into account the appellant’s quite extraordinary cooperation with the police and his significant rehabilitation. This approach also led the trial judge to consider that the necessary deterrence and denunciation could only be achieved by a custodial sentence.

[2] Accordingly the appeal is allowed, the custodial sentence varied to twenty months to be served on the conditions in the conditional sentence order. The conditional sentence will run from today’s date. The three-year probation term will remain.

(signed) “J. J. Carthy J.A.”

(signed) “John Laskin J.A.”

(signed) “M. Rosenberg J.A.”