CITATION: R. v. Barnes, 2007 ONCA 201

DATE: 20070322

DOCKET: C39878

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JAMES BARNES (Appellant)

BEFORE:

SHARPE, SIMMONS and CRONK JJ.A.

COUNSEL:

Faisal Mirza

for the appellant

Shelley Hallett

for the respondent

HEARD & ENDORSED:

March 21, 2007

On appeal from the conviction imposed by Justice Brennan of the Superior Court of Justice dated February 18, 2003.

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

[1] We agree with the submission that before sentencing the appellant on each count, the trial judge should have dealt with the issue of which counts were to be stayed pursuant to the Kienapple principle. It would then have been open to him, if he chose to do so, to attach notional sentences to the counts stayed which could become relevant in the event of a successful appeal against the counts not stayed.

[2] That said, we are not persuaded that, in the end, there is any error meriting the intervention of this court.

[3] It is conceded that, apart from the question of sentence, the trial judge was entitled to enter convictions on each of the counts that were not stayed and that there is no duplication involved in those counts that violated Kienapple.

[4] We do not accept the submission that a sentence of eight years could not be justified with respect to count five, nor do we agree that the global sentence imposed reveals any error in principle entitling this court to intervene.

[5] These were serious offences involving the use of a semiautomatic handgun against security guards at a nightclub because of a perceived insult. One of the victims sustained serious personal injury, in a situation where one or both of the victims could easily have been killed. While the global sentence of 11 years (less 3 years credit for pre-trial custody for a net sentence of 8 years) was certainly towards the high end of the range, the sentence was not unreasonable. In the circumstances of these offences, the trial judge was entitled to emphasize general deterrence and, given the nature of the offences, the appellant’s record, background, and apparent lack of remorse, we do not agree that the trial judge played paid insufficient heed to the prospects of rehabilitation.

[6] If necessary, we would vary the trial judge’s endorsement to reflect the stay of counts numbered 1, 3, 4 and 6 in accordance with the trial judge’s reasons.