DATE: 20041215

DOCKET: C37924

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ANDRE GERVAIS (Appellant)

BEFORE:

ROSENBERG, MOLDAVER and MacPHERSON JJ.A.

COUNSEL:

Anil K. Kapoor

for the appellant

C. Jane Arnup and Susan Magotiaux

for the respondent

HEARD & ENDORSED:

December 13, 2004

On appeal from conviction by Justice Archie Campbell of the Superior Court of Justice, sitting with a jury, dated January 30, 2002 and sentence imposed by Justice Campbell dated January 31, 2002

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

[1] The appellant only pursued three grounds of appeal in oral argument. We have not been persuaded that the trial judge erred in any respect with regard to the conviction. The trial judge’s instructions on aiding and abetting were correct as applied to murder either under s. 229(a)(i) or (ii) of the Criminal Code. The charge on recent possession was appropriate and entirely fair to the appellant. Finally, the instructions on Thrush were fair to the appellant. It seems to us that the defence made a tactical decision as to what they wanted the jury to hear of the “Darryl” offence. In those circumstances, the directions to the jury adequately put the Crown and defence positions.

[2] In our view, the period of parole ineligibility of 14 years cannot stand. While there was reason to increase the period given the callous nature of the crime and the surrounding circumstances and notwithstanding the sentence imposed on Bailey, the trial judge erred in principle in placing undue emphasis on the criminal record, which was for minor property offences.

[3] Accordingly the appeal from conviction is dismissed. The appeal from parole ineligibility is allowed and the period reduced to 12 years.