DATE: 20040326

DOCKET: C40756

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– LINCOLN SADDLER (Appellant)

BEFORE:

WEILER, CRONK and GILLESE JJ.A.

COUNSEL:

Christopher Bundy

for the appellant

Leslie Maunder

for the respondent

HEARD AND ENDORSED:

March 25, 2004

On appeal from the sentence imposed by Justice Sandra Chapnik of the Superior Court of Justice dated May 20, 2003.

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

WEILER AND CRONK JJ.A.:

[1] In our view, the sentence appeal should be allowed. The fresh evidence, filed on consent, demonstrates that the appellant has made a concerted effort at rehabilitation since his release on bail in September 2003, including attending various rehabilitation programs, registering for others and moving to a new apartment in an area away from his previous associates. This information was not available to the trial judge at the time of sentencing when she concluded that the appellant’s prospects for real rehabilitation were questionable.

[2] The appellant committed a minor theft while he was on bail and attempting rehabilitation. It is common ground that he has a severe addiction problem. Attempts at rehabilitation do not always go in a straight line.

[3] For these reasons, leave to appeal sentence is granted, the sentence appeal is allowed and the sentence is reduced to fourteen months’ incarceration, which sentence the appellant has already served.

GILLESE J.A. (dissenting):

[4] There is no error in principle in the sentence imposed. In my view, the fresh evidence which is relied upon which purports to show that Mr. Saddler has made serious attempts at rehabilitation is belied by the fact that during the period of supposed rehabilitation and while on bail, Mr. Saddler was convicted once again of theft under and sentenced to 30 days’ incarceration. In those circumstances, there is no basis or reason to interfere with the sentence imposed.