Court of Appeal for Ontario

Date: 2005-10-07 Docket: C43538

Re: Her Majesty the Queen (Appellant) – and – Marc LeMaguer (Respondent)

Before: Rosenberg, Feldman and Juriansz JJ.A.

Counsel: Karey Katzsch, for the appellant Alan D. Gold and Vanessa Arsenault, for the respondent

Heard & Endorsed: September 30, 2005

On appeal from sentence imposed by Justice Casimir N. Herold of the Superior Court of Justice dated April 18, 2005.

Appeal Book Endorsement

[1] On this Crown appeal, the only issue is the validity of the condition that allows the respondent to leave the country for purposes of employment for 15 days/month. The Crown does not now seek a custodial sentence. The Crown also fairly concedes that the trial judge had jurisdiction under s. 742.3(1)(d) of the Criminal Code to make this order.

[2] It then comes down to whether as a result of this condition the sentence was manifestly inadequate or the trial judge made an error in principle.

[3] On the authorities before the trial judge and placed before us, it appears that the trial judge extended the length of the conditional sentence because of this unusual condition. We see no error in principle in making this order. While such a condition will be appropriate only in the rarest of cases, we cannot say that the trial judge erred in principle in this case having regard to all the circumstances, including the following:

(1) there was no evidence of distribution;

(2) the collateral consequences to the respondent and his family were severe and far beyond what is usually the case;

(3) the house arrest condition for when the respondent is in Canada is very stringent; and

(4) as a result of the charge the respondent was effectively prevented from obtaining employment in Canada; this condition became the only viable road to rehabilitation.

[4] Finally, we are satisfied that the condition as worded is sufficiently precise to ensure that the respondent’s activities out of Canada are solely related to employment. We also see no ambiguity in the wording of the condition regarding employment interviews in Canada.

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