Court File and Parties

Date: 2001-10-26 Docket: C35956 Court of Appeal for Ontario

Re: Her Majesty the Queen (Respondent) v. Stephen Fazekas (Appellant)

Before: Finlayson, Austin and Sharpe JJ.A.

Counsel: Stephen Fazekas, in person Nadia Thomas, for the respondent

Heard: October 22, 2001

On appeal from the conviction dated May 22, 2001 and the sentence imposed on May 31, 2001 by Justice Patricia Hennessey, sitting with a jury.

Endorsement

Released Orally: October 22, 2001

[1] Mr. Fazekas appeals from his conviction on a charge of harassment. One of the grounds is that the conviction resulted from the alleged violation of a peace bond which he argues should never had been issued. Mr. Fazekas says that he tried to set the peace bond aside but was unsuccessful. As long as it remained outstanding the peace bond had to be observed.

[2] We have read the jury charge and Mr. Fazekas’ grounds of appeal and heard his oral argument but we see no merit in any of the other matters he raises with respect to conviction.

[3] The appeal as to conviction is therefore dismissed.

[4] As to sentence, the trial judge in passing sentence said:

I am of the view that a penitentiary sentence of 36 months, followed by a probationary term, would be appropriate. Because sir, you have served the equivalent of 24 months, you are sentenced to a further 12 months in custody. This will be followed by a term of probation for three years on the following terms: . . . .

Her endorsement reads as follows:

Has served the equivalent of 24 months in custody. Therefore he has a sentence of 12 months remaining. In addition there will be 3 year probationary term, with terms as set out in written decision filed today as well as s. 109 prohibition on firearms.

[5] Mr. Fazekas argues that the three years probation on top of his sentence of three years is illegal. The sentence imposed, however, though awkwardly phrased, was for one year in addition to time served, plus three years probation. The time served was from May 12, 2000 to May 22, 2001, a period of about 12.5 months for which the trial judge gave credit of 24 months. The “time served” is not part of the sentence. The sentence in issue was for twelve months or one year plus three years probation. There is nothing unlawful or illegal about that sentence.

[6] The appeal as to sentence therefore is dismissed.

“G. D. Finlayson J.A.”

“Austin J.A.”

“Robert J. Sharpe J.A.”