Court of Appeal for Ontario

R. v. Kane

Date: 2001-10-30

Chirstopher Hicks (Hicks Block Adams), for the appellant;

(C34210)

[1] By the Court: We will not consider the constitutional argument raised for the first time on appeal. The trial judge did not rely on the reverse onus in s. 349(1) and in any event the Crown had no opportunity to put s. 1 evidence before the court.

[2] The trial judge did not consider the counts separately and he failed to address the legal issues raised in at least some of the counts concerning the appellant's legal status when he entered the apartments. Each of the unlawful entry counts also raised different factual issues.

[3] The trial judge never considered the reliability of the evidence of the complainants as opposed to their credibility.

[4] The inadequacies in the reasons require that the convictions on the unlawfully in a dwelling house charges be quashed. Those convictions are set aside and a new trial is ordered. The fraud convictions and the conviction for attempted fraud stand.

[5] The sentences imposed in the fraud counts were illegal. Two years is the maximum.

[6] The appellant has a terrible record for similar offences. He preys on elderly citizens and may be characterized as close to the worst offender. He deserves little if any credit for his pretrial incarceration since he was on parole when arrested on these charges.

[7] We think an appropriate sentence is 6 months consecutive on each fraud charge and 3 months consecutive on the attempted fraud charge for a total sentence of 27 months.

[8] In imposing this sentence we have taken into consideration that these 5 offences were obviously part of a larger scheme as indicated by the evidence adduced on the other counts. We have considered this an aggravating factor and the Crown may wish to take this into consideration in deciding whether to prosecute a new trial on the unlawfully in a dwelling house charges.

[9] The sentence is varied accordingly.

Order accordingly.