CITATION: R. v. Ng, 2007 ONCA 183

DATE: 20070316

DOCKET: C45796

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – KIT KEUNG NG (Respondent)

BEFORE:

BLAIR, LANG and MacFARLAND JJ.A.

COUNSEL:

John North and Shannon McPherson

for the appellant

Kit Keung Ng

in person

HEARD & RELEASED ORALLY:

March 9, 2007

On appeal from the sentence imposed by Justice Edward F. Ormston of the Ontario Court of Justice on July 11, 2006.

E N D O R S E M E N T

[1] This is an appeal of a conditional sentence order.

[2] Where the court is persuaded of a breach of a conditional sentence, the Criminal Code, section 742.69, provides four options. The court can take no action, change the optional conditions, suspend the conditional sentence order and direct the offender to serve a portion of the unexpired sentence in custody, or terminate the conditional sentence order and commit the offender to custody until the expiration of the sentence. A court cannot impose a new or second sentence or lengthen the original sentence.

[3] In contrast, a section 732 intermittent sentence is only available where a sentence is imposed, the sentence is one of less than 90 days, a probation order is also imposed, and an offence has been committed. None of those circumstances apply in the matter under appeal.

[4] First, under the provisions of the Criminal Code, a breach of a conditional sentence order is not a new offence; second, the judge below was not imposing a sentence, but rather changing the terms of the conditional sentence already imposed; third, the sentence that was breached was not less than 90 days, but rather was one of 559 days; and fourth, probation is not available as a term of a conditional sentence nor as a term on an order dealing with the breach of a conditional sentence.

[5] Accordingly, in our view, an intermittent sentence is not available on the disposition of a breach of conditional sentence.

[6] In the result, leave to appeal is granted, the appeal is allowed and the term “intermittent” is deleted from the disposition below.

“R.A. Blair J.A.”

“S.E. Lang J.A.”

“J. MacFarland J.A.”