DATE: 20060310

DOCKET: C44438

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – KEVIN JOHNSTON (Appellant)

BEFORE: ROSENBERG, BORINS AND LANG JJ.A.

COUNSEL:

Eric D. McCooeye for the appellant

Deborah Calderwood for the respondent

HEARD & ENDORSED: March 9, 2006

On appeal from sentence imposed by Justice Gladys I. Pardu of the Superior Court of Justice dated October 21, 2005.

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

[1] The Crown properly concedes that the trial judge misapprehended the allocation of the pre-trial custody. Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence of imprisonment reduced to time served.

[2] The appeal is otherwise dismissed and the restitution order and probation order will stand. This was an appropriate case for a restitution order. The trial judge considered the appellant’s ability to pay and she made no error in principle.