DATE: 20021205

DOCKET: C37374

COURT OF APPEAL FOR ONTARIO

RE: R. v. Raymond Lelieveld

BEFORE: McMurtry, C.J.O., Cronk and Armstrong JJ.A.

COUNSEL: Constance Baran-Gerez

for the appellant

Roger Shallow for the respondent

HEARD: November 28, 2002

On appeal from the conviction entered by Justice William J. Festeryga dated September 28, 2001 and the sentence imposed on November 9, 2001.

E N D O R S E M E N T

Released Orally: November 28, 2002

[1] The appellant alleges three errors by the trial judge in this case. First, the appellant argues that the trial judge erred by characterizing the appellant’s driving as a breach of trust. This was not a trust relationship in the traditional sense, but the appellant did assume responsibility for driving the victim home and for driving the victim’s car while the appellant was impaired. In our view, the trial judge’s references to a breach of trust by the appellant can be understood as references to the responsibility assumed by the appellant to drive safely and the fact that the victim entrusted his safety and his car to the appellant. Accordingly, we are not persuaded that the trial judge’s characterization of the appellant’s driving was an error in principle.

[1] Second, the appellant asserts that the trial judge erred by finding that the appellant was a long-term abuser of alcohol. We disagree. The appellant was convicted in 1997 of impaired driving. Further, the appellant admitted to his probation officer that he “got loaded once per week”. Accordingly, there was some evidence to support the trial judge’s finding.

[2] Finally, the appellant argues that overall the sentence here was unfit and exceeds the proper range for this type of offence. In our view, although this sentence may be at the high end of the range, it is not unfit having regard to all of the aggravating circumstances.

[3] Accordingly, leave to appeal sentence is granted and the appeal is dismissed.

“Roy McMurtry C.J.O.”

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”