DATE: 20030512

DOCKET: C38383

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JOVONNE CATER (Appellant)

BEFORE:

CARTHY, MOLDAVER AND FELDMAN JJ.A.

COUNSEL:

David Tanovich

for the appellant Cater

Christine Tier

for the Crown, respondent

HEARD:

MAY 12, 2003

On appeal from the conviction by Justice John M. Ritchie of the Ontario Court of Justice dated April 18, 2002 and from the sentence imposed by Justice John M. Ritchie dated May 28, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] The appeal against conviction is dismissed. There is no basis on the evidence to find the Crown guilty of abusive conduct. The matters complained of were all screened through experienced defence counsel. We would not interfere with the trial judge’s ruling.

[2] The sentence was 16 months plus three years probation and in our view was fit when issued. However, the passage of time and the appellant’s current pregnancy with twins, expected in November, has caused us to look at the circumstances anew. We agree with the Crown that this offence calls for a period of custody. The Crown at the same time agrees that we should be concerned that under the Provincial system her babies will be taken from her if born in prison. With her encouragement we feel justice will be done by varying the sentence to one of six months custody plus three years probation on the terms imposed by the trial judge except for the term as to seeking out employment. We so order.