Court of Appeal for Ontario

DATE: 20070412

DOCKET: C41143

ROSENBERG, FELDMAN and JURIANSZ JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

PATRICIA ANN DOWNEY

Appellant

Counsel:

Delmar Doucette for the appellant

Patricia Ann Downey in person

Philip Downes for the respondent

Heard and Endorsed: September 29, 2005

On appeal from conviction by Justice Casey Hill of the Superior Court of Justice dated September 23, 2003 and sentence imposed dated November 24, 2003.

APPEAL BOOK ENDORSEMENT

[1] The only ground of appeal pursued on appeal from conviction was the use of the similar fact evidence. We are satisfied that the trial judge did not use the evidence simply to bolster the credibility of the evidence of the complainants without identifying the issues to which the evidence was directed. It is apparent when the reasons for the ruling admitting the evidence are taken with the reasons for judgment, the trial judge used the evidence to find that the representations were made. The stories told by the complainants on their face seemed in some respects implausible. The fact that the appellant told very similar stories to the similar fact witnesses and to each of the complainants made it likely that the complainants were telling the truth. The trial judge rejected the suggestion of collusion.

[2] As to sentence. Credit for pre-trial custody is a matter for the discretion of the trial judge, except that when departing from the 2:1 guideline the trial judge should give reasons. The trial judge did so in this case. The fact that the appellant allegedly committed other offences during the trial was only one factor. In any event, as held in R. v. Rezaie, the ultimate question is whether the sentence was fit. Given the serious nature of the offences, the appellant’s record for similar offences and that she actually committed part of the offences while serving sentence for a similar crime required a lengthy penitentiary sentence. This also justified a jump from the previous sentence.

[3] Accordingly, the appeal from conviction is dismissed. Leave to appeal sentence is granted but the appeal is dismissed.