DATE: 20040928

DOCKET: C41276

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – TROY JOSEPH GAUDON (Appellant)

BEFORE: WEILER, ROSENBERG JJ.A. and PARDU J. (ad hoc)

COUNSEL: Irwin A. Koziebrocki for the appellant

Paul G. McDermott for the respondent

HEARD: September 22, 2004

RELEASED ORALLY: September 22, 2004

On appeal from the sentence imposed by Justice C. Raymond Harris of the Superior Court of Justice dated January 9, 2004.

E N D O R S E M E N T

[1] On December 9, 2003 the appellant was convicted of assault causing bodily harm. On January 9, 2004, he was sentenced to a one-year conditional sentence of imprisonment and three years’ probation in addition to his presentence custody of one year. The appellant submits that certain conditions imposed as part of the conditional sentence are unreasonable. He also submits that the imposition of a further three‑year probation order is unduly harsh and its conditions, including a condition that he not consume alcohol, are too restrictive.

[1] The appellant’s conditional sentence placed him on continuous house arrest, except for a brief period each day when he was allowed outside for exercise, and contained other restrictive conditions. Following the imposition of his sentence, the appellant applied to vary the conditions of his conditional sentence to allow him to work. However, within a few days of his application he was charged with breaching his conditional sentence because he was found outside of his home walking home with two cans of beer. The application to vary and the breach of his conditional sentence were both heard at the same time. The judge at first instance sentenced the appellant to six months in jail for breaching his conditional sentence and dismissed his application to vary the conditions of his sentence. The appellant’s conditional sentence ends in about 6 weeks.

[2] The appellant’s position is that the condition he remain in his home and not be able to go to work is too restrictive and was unreasonable. The respondent’s position is that the condition is not unreasonable in view of the appellant’s background and because the sentencing judge wished to replicate the conditions of incarceration as closely as possible. As well, the appellant did not propose that he would be under close supervision going to and from work. In the unusual circumstances of this case, the condition was not unreasonable.

[3] Another condition of the conditional sentence is that the appellant only be able to see family members on Tuesdays and Thursdays between 2:00 p.m. and 3:00 p.m. In effect this condition prevents the appellant from seeing his daughter who is of school age. The trial judge gave no reason for insisting on the time of this restriction. In the circumstances, we consider the imposition of this condition to be unreasonable and would vary it to allow the appellant to receive visits from his daughter on either Saturday or Sunday provided that these visits do not contravene any order of the Family Court respecting access.

[4] We do not agree that the probation order, which includes conditions relating to non‑contact with the victim of the assault, should be removed. We would alter the terms of the order and provide that only conditions (d), (e), (o), (p) and (t) apply, thereby removing, among others, the condition that the appellant abstain from alcohol.

[5] Leave to appeal sentence is granted and the appeal as to sentence is allowed in part as indicated.

“Karen M. Weiler J.A.”

“M. Rosenberg J.A.”

“G.P. Pardu J. (ad hoc)”