COURT OF APPEAL FOR ONTARIO

DATE: 2004-04-13

DOCKET: C40445

RE: HER MAJESTY THE QUEEN (Respondent) –and– LARRY JOHNSON (Appellant)

BEFORE: CHARRON, ARMSTRONG and BLAIR JJ.A.

COUNSEL: Leslie Maunder for the appellant Carolyn Hayes for the respondent

HEARD AND ENDORSED: April 8, 2004

On appeal from the conviction and sentence entered by Justice James T. Robson of the Ontario Court of Justice on May 26, 2003.

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

[1] In our view, the sentencing judge erred in treating this case as one of breach of trust based on the backdating of the certificate of exemption later received by the appellant. This erroneous assumption appears to have been an important factor in his finding that a conditional sentence was inappropriate and may well have been a factor in deciding on the quantum.

[2] In the circumstances, we are of the view that the appeal should be allowed, the sentence set aside and substituted with a sentence of time served.