Court of Appeal for Ontario

CITATION: R. v. Middeljans, 2007 ONCA 766

DATE: 2007-11-08

DOCKET: C40541

BEFORE: Moldaver, Shapre and Blair JJ.A.

BETWEEN:

Her Majesty the Queen Respondent

and

Thomas Middeljans Appellant

COUNSEL: Joseph Di Luca for the appellant Howard Leibovich for the respondent

Heard and endorsed: November 7, 2007

On appeal from conviction by Justice Ronald C. Sills of the Superior Court of Justice dated September 28, 1998 and sentence imposed June 6, 2000.

APPEAL BOOK ENDORSEMENT

[1] The Crown concedes that the appeal should be allowed and a new dangerous offender proceeding ordered.

[2] At the first hearing, the learned trial judge did not have the benefit of R. v. Johnson (2003), 2003 SCC 46, 177 C.C.C. (3d) 97 (S.C.C.), and accordingly, he did not consider the Long Term Offender provisions in the Criminal Code. The Crown accepts that this is not a case in which the curative proviso can be applied to save the dangerous offender designation.

[3] Accordingly, in view of the Crown’s concession, we would allow the appeal and order a new dangerous offender proceeding.