DATE: 20050517

DOCKET: C42877

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant (Appellant)) – and – GLENDA FOSTER (Respondent)

BEFORE:

ROSENBERG, BLAIR and JURIANSZ JJ.A.

COUNSEL:

Eliott Behar

for the appellant

Joe Wilkinson

for the respondent

HEARD & RELEASED ORALLY:

May 12, 2005

On appeal from sentence imposed by Justice Alfred Stong of the Superior Court of Justice dated December 10, 2004.

E N D O R S E M E N T

[1] The sentence hearing in this case was most unsatisfactory. There were several critical factual issues in dispute in this case including the impact of the respondent’s consumption of drugs and alcohol on her mental state and the manner in which the respondent suffered the wound described in the medical report relied on by the Crown as “a classic defensive wound”.

[2] Crown counsel referred to these disputes while reading in the facts. Those issues were further embellished by defence counsel (not Mr Wilkinson). At no time did Crown counsel (not Mr Behar) suggest that the respondent was required to prove her version of events and neither counsel suggested that there should be a so-called Gardiner hearing [R. v. Gardiner, [1982] 2 S.C.R. 368] to resolve these matters on the basis of evidence.

[3] This left the trial judge in a difficult position. The only reasonable interpretation of his reasons and the result is that he accepted that the respondent consumed the drugs and alcohol and that her capacity to measure her actions was seriously compromised, far more than the mere lowering of her inhibitions. It is also apparent that the trial judge accepted that the respondent acted in self-defence, although she used excessive force.

[4] In these highly unusual circumstances, we are not satisfied that the sentence, although at the extreme low end of the range for an offence of this nature, was wholly inadequate or reflects an error in principle.

[5] We conclude with this point. If Crown counsel did not accept the mitigating facts alleged by the defence, counsel was bound to make that clear so that the defence could decide whether to call evidence on those issues. Similarly, if defence counsel did not accept critical facts as to the manner in which this assault occurred, counsel should also have made that clear. Unfortunately, that was not done in this case.

[6] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”