Court File and Parties

Citation: R. v. Preston, 2008 ONCA 530

Date: 20080630

Docket: C47993

Court of Appeal for Ontario

Rosenberg, Simmons JJ.A. and Speyer J. (ad hoc)

Between:

Her Majesty the Queen Respondent

And

Roy Preston Appellant

Counsel: Gary R. Clewley for the appellant Shawn Porter for the respondent

Heard and released orally: June 24, 2008

On appeal from the decision of Justice Anne Molloy of the Superior Court of Justice, sitting as a summary conviction appeal court judge, dated November 19, 2007, dismissing the appeal from conviction by Justice Peter H. Wilkie of the Ontario Court of Justice dated August 3, 2005 and sentence imposed by Justice Wilkie dated September 23, 2005.

Endorsement

[1] We have carefully considered the record in this case including the proposed fresh evidence and especially the report of Dr. Rowden. We have considerable doubt that this appeal from sentence involves a question of law alone as required by s. 839 of the Criminal Code. In any event, for the following reasons the appeal is dismissed.

[2] Counsel for the appellant misapprehends the role of the summary conviction appeal court. As the Supreme Court of Canada has said repeatedly and as was noted by the appeal judge, the trial judge is entitled to deference by the appellate court and that court may intervene only where the sentence originally imposed was unreasonable or the sentencing court made an error in principle. It is not the role of the appeal court to consider the matter of sentence without regard to the reasons of the trial judge.

[3] The appeal judge made no error in her approach to the appeal. The error in principle that counsel for the appellant appears to be advancing is that the trial judge did not adequately take into account the impact of the sentence of imprisonment on the appellant’s career as a police officer and, further, that the appeal judge also failed to consider this matter. There is no merit to this submission. The trial judge expressly stated that he understood the appellant’s job was significantly at risk but as he correctly said that factor “ought not in this case on these facts trump the pressing need for denunciation and deterrence”.

[4] The trial judge gave extensive and careful reasons for that decision and we agree entirely with him. This was such a grave offence that a sentence of imprisonment was the only appropriate disposition. The appellant took part in a serious unprovoked assault on a civilian and then to cover up his involvement attempted to fabricate evidence that could have led to the conviction of an innocent man. His entire course of conduct represented an appalling breach of trust. We agree with the appeal judge that the sentence imposed was, if anything, on the lenient side.

[5] We wish to comment on one further submission of counsel for the appellant. He made the unusual submission that even if the sentence of imprisonment was appropriate, the sentencing court ought to have refused to impose that sentence so that the police chief or his designate would decide whether the appellant should retain his position. We do not agree. It was not open to a sentencing court to so abdicate its responsibility in imposing sentence.

[6] Accordingly, the appeal is dismissed.

Signature: “M. Rosenberg J.A.”

“Janet Simmons J.A.”

“Speyer J. (ad hoc)”