DATE: 20021217

DOCKET: C36416

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – TREVOR DOBBS (Appellant)

BEFORE: ABELLA, GOUDGE and MacPHERSON, JJ.A.

COUNSEL: Joseph Di Luca for the appellant Shelley Hallett for the respondent

HEARD: December 12, 2002

On appeal from the sentence imposed by Justice Bruno Cavion dated May 27, 1999.

E N D O R S E M E N T

Released Orally: December 12, 2002

ABELLA and MACPHERSON JJ.A.:

[1] While the appellant submits that the trial judge erred in imposing a lifetime ban under s. 109 rather than s. 100(1) (the then operative section of the Criminal Code), the trial judge purported to act under s. 100(1) and we see no basis to impute a jurisdictional error to him simply because the technical form of the order is headed “s. 109”.

[2] The remaining issue, therefore, is whether under s. 100(1) the trial judge was entitled to impose the lifetime ban sought by the Crown - and not disputed by defence counsel at trial. In our view, the arson offence in this case fell within s. 100(1) on the bases of the conduct involved and the threat of violence. Given the clear animus against the MNR by the appellant, his expressed threatening views towards and about the people who worked there, and his possession of firearms and explosives notwithstanding the existence of a prohibition order, we are satisfied that the act of arson should be seen as, at the very least, threatening the use of violence.

[1] Leave to appeal sentence is granted and the appeal from sentence is dismissed.

“R.S. Abella J.A.”

“J.C. MacPherson J.A.”

GOUDGE J.A. (Dissenting):

[2] I agree with my colleagues that this case should be approached on the basis that the trial judge imposed the ban under s. 100. However, respectfully, I differ from my colleagues as to the applicability of that section. I do not think that section was open to the trial judge in this case. The trial judge did not elaborate on how the preconditions for s. 100 were met here, and I do not think it would have been reasonable for him to conclude beyond a reasonable doubt that the two acts of arson here constituted a threat of violence against MNR employees, particularly given the location and the circumstances of the arson. In my view, the appeal as to sentence should be allowed, this order set aside, and the 10 year ban imposed as conceded by the appellant.

“S.T. Goudge J.A.”