Her Majesty the Queen v. Kohl [Indexed as: R. v. Kohl]

94 O.R. (3d) 241

Court of Appeal for Ontario,

R.P. Armstrong, Lang and Epstein JJ.A.

February 2, 2009

Criminal law -- Criminal harassment -- Elements of the offence -- Accused jumping out from behind bushes, blocking complainant's path, then chasing her down dark and lonely street -- Accused continuing to stare at her when she sought help at nearby house -- Much larger accused being stranger to complainant and not speaking to her -- Incident amounting to criminal harassment as was highly threatening and persistent causing complainant to fear for her safety.

Criminal law -- Sentencing -- Criminal harassment -- Accused drug addict with serious criminal record being convicted of criminal harassment after jumping from behind bushes, blocking stranger's path and chasing her down dark and lonely street until she sought help in a nearby house -- Accused's appeal from sentence of three years' imprisonment allowed -- Accused undertaking treatment for drug addiction pending trial -- Sentence reduced to two years' imprisonment followed by three years' probation -- Three-year sentence disproportionate to conduct underlying offence notwithstanding accused's prior record.

The complainant was jogging when the accused, a stranger to her, jumped out from behind some bushes and blocked her way in a threatening and frightening manner without touching her or speaking to her. She ran away and he chased her down the dark and lonely street. When she ran up to a house to seek help, he stood at the end of the driveway and stared at her. The complainant was very frightened. The accused was convicted of criminal harassment and was sentenced to three years' imprisonment. He appealed the conviction and the sentence.

Held, the conviction appeal should be dismissed; the sentence appeal should be allowed.

The accused's conduct alone, without spoken words, amounted to threatening conduct within the meaning of s. 264(2)(d) of the Criminal Code, R.S.C. 1985, c. C-46. A single incident may constitute harassment without being linked to past conduct and without carrying with it the threat of future contact. Even though the conduct in this case occurred over a relatively short period of time and there was no prior contact, it was highly threatening and persistent. The complainant reasonably feared for her safety and was clearly in a state of being harassed.

The 33-year-old accused had a serious criminal record and was a drug addict. He needed to be incarcerated for a significant period of time to send a message of deterrence and to reflect his antecedents. While in pre-trial custody, the accused had undertaken treatment for his drug addiction, which was perceived by him and his family to be at the root of his criminal conduct. The three-year sentence imposed at trial was disproportionate to the conduct underlying the offence and was therefore manifestly unfit. The sentence was varied to two years' imprisonment followed by three years' probation.

APPEAL from a conviction for criminal harassment entered on June 20, 2007 and from the sentence imposed on October 1, 2007 by Vyse J. of the Ontario Court of Justice.

Cases referred to R. v. O'Connor, [2008] O.J. No. 1125, 2008 ONCA 206, 234 O.A.C. 135, 78 W.C.B. (2d) 262, apld [page242] R. v. Burns, [2007] O.J. No. 5117, 2008 ONCA 6, 77 W.C.B. (2d) 402; R. v. Kosikar, 1999 CanLII 3775 (ON CA), [1999] O.J. No. 3569, 178 D.L.R. (4th) 238, 124 O.A.C. 289, 138 C.C.C. (3d) 217, 43 W.C.B. (2d) 407 (C.A.), consd R. v. Bates, 2000 CanLII 5759 (ON CA), [2000] O.J. No. 2558, 134 O.A.C. 156, 146 C.C.C. (3d) 321, 35 C.R. (5th) 327, 47 W.C.B. (2d) 20 (C.A.); R. v. De la Cruz, 2003 CanLII 42069 (ON CA), [2003] O.J. No. 1971, 172 O.A.C. 177, 174 C.C.C. (3d) 554, 57 W.C.B. (2d) 632 (C.A.); R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555, 208 O.A.C. 324, 205 C.C.C. (3d) 488, 37 C.R. (6th) 46, 69 W.C.B. (2d) 12 (C.A.); R. v. White, 2003 CanLII 4140 (ON CA), [2003] O.J. No. 2544, 173 O.A.C. 201, 176 C.C.C. (3d) 396, 58 W.C.B. (2d) 263 (C.A.), distd Other cases referred to R. v. Linden, 2000 CanLII 15854 (ON CA), [2000] O.J. No. 2789, 135 O.A.C. 193, 147 C.C.C. (3d) 299, 5 M.V.R. (4th) 76 (C.A.); R. v. Sillipp, 1997 ABCA 346, [1997] A.J. No. 1089, [1998] 2 W.W.R. 653, 55 Alta. L.R. (3d) 263, 209 A.R. 253, 120 C.C.C. (3d) 384, 11 C.R. (5th) 71, 48 C.R.R. (2d) 160, 36 W.C.B. (2d) 307 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 264 [as am.], (2), (d), 732.1(2)

Michael Dineen, for appellant. Brad Greenshields, for respondent.

The judgment of the court was delivered by

R.P. ARMSTRONG J.A.: -- Introduction

[1] The appellant was convicted of the following offence:

Kevin Martin KOHL on or about the 3rd day of November in the year 2006 at the City of St. Catharines in the said region did, without lawful authority and knowing that another person, namely Susan DICK, was harassed or recklessly as to whether that person was harassed, engage in threatening conduct directed at that person and cause the said Susan DICK to reasonably fear for personal safety, contrary to Section 264, subsection (2) of the Criminal Code of Canada.

[2] The appellant, a complete stranger to the complainant, jumped out from behind some bushes and confronted her, blocked her way in a threatening and frightening manner while she was jogging, and confronted her without either touching her or speaking to her. He then chased her down the street as she attempted to escape from him.

[3] The appellant was sentenced to three years in the penitentiary. [page243]

[4] This case raises the issue of whether a single incident of this nature can constitute harassment under s. 264(2)(d) of the Criminal Code, R.S.C. 1985, c. C-46. It also raises the issue of whether a sentence of three years in the penitentiary is a fit sentence.

[5] For the reasons that follow, I would dismiss the appeal from conviction. I would allow the sentence appeal and reduce the sentence to two years in the reformatory followed by a period of probation.

The Facts

[6] In the early evening hours of November 3, 2006, the complainant, who was training to compete in the New York City marathon two days later, was jogging on a residential street in Port Dalhousie, Ontario. She was passed on the roadway by the appellant, who was running with what the complainant described as a "loping, almost gorilla-like" gait. It was dark and the street lamps were on.

[7] As the appellant ran ahead of her, the complainant noticed that he looked back at her over his shoulder on four occasions and then disappeared from view behind some bushes. She was alarmed and frightened by this conduct. Within a very short period of time, the appellant came out from behind the bushes and confronted her.

[8] The appellant stood in the middle of the road and faced the complainant with his arms outstretched. She testified that "it was a threatening stance as if he was trying to block my way. It was clear I was not going to make it past him." She was alarmed as the appellant came towards her in a very threatening manner. The complainant stopped running. The complainant took two steps forward to see what the appellant would do and he came towards her -- she panicked and ran away in the opposite direction.

[9] The appellant ran after the complainant and continued to pursue her. The complainant ran as fast as she could. However, the appellant was gaining on her. The complainant looked for a house in which she could seek a safe haven. She saw a house with its porch light on and a car in the driveway. She ran up the steps and rang the doorbell. As she waited for someone to come to the door, the appellant stood at the end of the driveway and stared at her.

[10] The owner of the house, Robert Montgomery, answered the door and after the complainant explained her plight, he let her into the house. Mr. Montgomery observed that the complainant was very, very scared when he opened the door. While [page244] she was comforted by Mr. Montgomery's wife, Mr. Montgomery went outside to speak to the appellant. Mr. Montgomery noticed the appellant standing in front of a neighbour's house -- two doors away. Mr. Montgomery approached the appellant and asked him why he was there. The appellant said that he was waiting for his girlfriend to pick him up. Mr. Montgomery then asked why he was on that street. The appellant responded that he had observed a neighbour of Mr. Montgomery, whom he knew, come home in his car and he wanted to talk to him. The appellant then walked into the neighbour's yard and stood under a tree.

[11] Mr. Montgomery described the appellant as appearing very disconnected. There was no emotional content to what he was saying. Mr. Montgomery thought the appellant was either on drugs or that he was mentally challenged in some way. Mr. Montgomery went back to his house and called the police.

[12] It took 20 to 25 minutes for the police officer, David Sinclair, of the Niagara Regional Police, to arrive. Constable Sinclair observed that the complainant had been crying. She appeared to be shaking somewhat. Her voice was very shaky. After the complainant and Mr. Montgomery recounted what had happened, Constable Sinclair left the Montgomery residence to look for the appellant. The officer did not find the appellant and returned to the Montgomery residence. It was arranged that Constable Sinclair would drive the complainant home.

[13] When the complainant got into the police car, she noticed that the appellant was standing at the end of the street. The police officer drove his car to where the appellant was standing -- near the bushes where he had first confronted the complainant. The complainant identified the appellant to the police officer. The police officer told the complainant to run back to the Montgomery residence.

[14] The officer arrested the appellant for criminal harassment. The officer cautioned the appellant and advised him of his right to counsel. The appellant responded: "I am sorry with that thing with the girl tonight. It won't happen again."

[15] Mr. Montgomery drove the complainant home.

[16] Throughout the confrontation between the complainant and the appellant, the appellant did not speak a single word. The complainant was 40 years old, 5 foot 5 inches tall and weighed 125 pounds. The appellant was 32 years old. Witnesses at trial estimated his height was between 5 foot 11 inches to 6 foot 4 inches and his weight between 190 pounds to 220 pounds. He was a big man. [page245]

The Reasons of the Trial Judge

[17] Defence counsel at trial conceded that an incident may be characterized as a single act and constitute harassment. However, he argued that the Crown had failed to prove any of the elements of the offence as described by the Alberta Court of Appeal in R. v. Sillipp, 1997 ABCA 346, [1997] A.J. No. 1089, 120 C.C.C. (3d) 384 (C.A.).

[18] In Sillipp, Berger J.A. described the elements of the offence of criminal harassment, at para. 18: 1) It must be established that the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (d) of the Criminal Code. 2) It must be established that the complainant was harassed. 3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; 4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and 5) It must be established that the complainant's fear was, in all of the circumstances, reasonable. The trial judge, after reviewing the evidence in some detail, concluded that the Crown had established beyond a reasonable doubt all of the elements of the offence.

[19] The trial judge sentenced the appellant to a three-year penitentiary term.

Issues on the Conviction Appeal

[20] The appellant raises the following grounds of appeal from conviction: (i) The trial judge erred in her analysis of whether the appellant's actions amounted to threatening conduct under s. 264(2)(d) of the Criminal Code. (ii) The trial judge erred in finding that the complainant was harassed when the single incident carried no real future prospect of the continuing torment of the complainant.

Analysis

(i) Did the trial judge err in her analysis of whether the appellant's actions amounted to threatening conduct under s. 264(2)(d) of the Criminal Code?

[21] Counsel for the appellant relies upon the decision of this court in R. v. Burns, [2008] O.J. No. 5117, 2008 ONCA 6 (C.A.). [page246] Burns was a police officer in North Bay and was convicted of criminal harassment. The court's endorsement on the harassment charge is contained in three short paragraphs and reads as follows [at paras. 2-4]:

To establish harassment under s. 264(2)(d) of the Criminal Code, the Crown had to establish that the appellant engaged in "threatening conduct". We accept the definition of threatening conduct given in R. v. George (2002), 162 C.C.C. (3d) 337 (Y.T.C.A.) at para. 39 that, in order to meet the objectives of s. 264, the threatening conduct must amount to a "tool of intimidation which is designed to instill a sense of fear in the recipient". The impugned conduct is to be viewed objectively, with due consideration for the circumstances in which they took place, and with regard to the effects those acts had on the recipient.

In brief, the conduct in question is as follows. The appellant and the complainant knew one another but had virtually no contact in the three years prior to the incident. The incident took place in broad daylight in downtown North Bay while the complainant was walking down Main Street with her five-year old daughter, after having left a bank. The appellant was dressed in full police uniform and also on foot on Main Street. He wolf-whistled at the complainant, said "nice butt" or "nice ass" and then, after the complainant sped up to get away from him, called out "are those pants painted on".

While the appellant's conduct was clearly inappropriate and unwanted, we do not see the incident as amounting to threatening conduct within the meaning of those words in s. 264(2)(d). Although the complainant justifiably felt upset and scared by the appellant's conduct, viewed objectively, we do not see it as rising to the level of a "tool of intimidation designed to instill a sense of fear".

[22] Counsel for the appellant submits that the trial judge did not have the benefit of Burns and failed to consider whether the appellant's conduct was a "tool of intimidation designed to instil a sense of fear" in the complainant. Counsel relies upon comments made by the trial judge to the effect that she could not discern what the intention of the appellant was in respect of the complainant. In particular, he cites the following observation of the trial judge in her reasons for judgment:

Left without explanation, the court, as was the complainant in this matter must have been left to surmise, conjecture or assume what were the intentions of the accused by his actions, which may not be discernable, nor are we certain they were discernable by the accused himself at the time.

[23] The appellant reasons from the above that the trial judge must have had a reasonable doubt whether the appellant's conduct appeared objectively to have been designed to instil fear. I disagree. All the trial judge is saying in the above excerpt from her reasons is that, because the appellant never spoke to the complainant, it was not possible to discern what he was about to do when he blocked her way and chased her down the street. [page247] That said, it does not weaken the case in support of a conviction for criminal harassment. His conduct alone, without the spoken word, was more than sufficient to establish threatening conduct within the meaning of s. 264(2) (d) of the Criminal Code. Indeed, it is clear from the evidence of the complainant that she feared for her safety. Her response of turning and running in search of a safe haven supports her testimony.

[24] On a purely objective standard, the following evidence supports the conclusion that the conduct of the appellant, in these circumstances, was threatening: (a) This incident occurred at night on a lonely residential street in Port Dalhousie. (b) The complainant was diminutive in size compared to the appellant. (c) The appellant was a complete stranger to the complainant. (d) After the complainant sought refuge at the Montgomery residence, the appellant continued to stare at her as she stood waiting for Mr. Montgomery to answer the doorbell.

[25] I am satisfied that the evidence of threatening conduct by the appellant was substantial. I would not give effect to this ground of appeal.

(ii) Did the trial judge err in finding that the complainant was harassed when the single incident carried no real future prospect of the continuing torment of the complainant?

[26] Counsel for the appellant submits that, for a single incident to constitute harassment under s. 264 of the Criminal Code, such incident must be linked to past conduct or "carry with it the threat of future contact". He relies upon this court's reasons for judgment in R. v. Kosikar, 1999 CanLII 3775 (ON CA), [1999] O.J. No. 3569, 138 C.C.C. (3d) 217 (C.A.), at para. 28, where Goudge J.A. said:

Moreover, while in this case the prior contact is important proof of the consequence caused to the complainant, it is possible to imagine a case where the complainant's feeling harassed would be proven not through the context of prior contact but by evidence of a single incident that carried the real future prospect of the continuing tormenting of the complainant. In other words, prior contact may not be the only way of proving the necessary consequence of a single act of threatening conduct.

[27] In Kosikar, the conduct relied upon by the Crown was an abusive letter sent after a previous conviction for harassing the [page248] complainant. The issue before the court was whether a single incident (the letter) could found a conviction under s. 264 given the harassment element of the offence. Goudge J.A. concluded that a single incident could be sufficient to support a conviction. He said, at para. 20:

As a matter of statutory interpretation I do not think that s. 264(2)(d) is limited to repeated threatening conduct to the exclusion of a single threatening act. Parliament expressly required repeated conduct in defining the prohibited acts in s. 264(2)(a) and (b). The absence of such a qualification in s. 264(2)(d) strongly suggests to me a legislative intention not to confine that prohibition to repeated threatening conduct, but to encompass a single threatening act as well. Goudge J.A. went on to say that the threatening conduct need not be repetitious provided that it produces in the complainant a state of being harassed. Relying in part on Sillipp, Goudge J.A. concluded that a state of being harassed involved the complainant being "tormented, troubled, worried continually or chronically, plagued, bedevilled and badgered".

[28] In a more recent judgment of this court, R. v. O'Connor, [2008] O.J. No. 1125, 2008 ONCA 206, Simmons J.A. appears to carry the analysis in Kosikar a step further. At paras. 4 and 5, Simmons J.A. said:

In Kosikar, evidence of prior contact between the accused and the complainant was used to show that as the consequence of a letter the complainant felt harassed. However, Goudge J.A. also stated, "it is possible to imagine a case where the complainant's feeling harassed would be proven . . . by evidence of a single incident that carried the real future prospect of the continuing tormenting of the complainant."

On the facts of this case, in my view, it was open to the trial judge to find that the complainant was harassed both because the appellant's behaviour during the incident was persistent and because the incident occurred while the appellant was subject to a probation order requiring that he have no contact with the complainant.

[29] I would adopt the approach taken by the court in O'Connor. Even though the conduct in this case occurred over a relatively short period of time and there was no prior contact, it was highly threatening and persistent. The appellant jumped out of the bushes, blocked the progress of the complainant with outstretched arms, chased her down the road where she fled from him, then stood outside the Montgomery residence and stared at her. The trial judge properly described the appellant's conduct as persistent:

When the persistence of his actions are taken into consideration with the fact that during this time he spoke no words to ease what obviously from his apology appeared to him to have an unfavourable effect on the complainant, his actions may, as previously described, appear as threatening conduct . . . [page249]

[30] During the encounter with the appellant, brief as it was, the complainant reasonably feared for her safety and was clearly in a state of being harassed.

[31] I would not give effect to this ground of appeal.

Sentence Appeal

[32] The appellant submits that the three-year sentence is manifestly unfit. He argues that the trial judge over- emphasized the appellant's criminal record and imposed a sentence that was not proportionate to the gravity of the offence and the responsibility of the offender.

[33] The appellant was 33 years old at the time of sentencing. He has the equivalent of Grade 12 education. He comes from a supportive family that includes both of his parents, sister, brother-in-law and brother. As a result of a relationship which began when he was 19 years old, he has a daughter who is now 12 years of age. He maintains a relationship with her and sees her when he is not in custody.

[34] The appellant has a serious criminal record that includes a number of youth court offences. His adult record of 12 convictions between 1996 and 2002 includes two separate convictions for robbery, two assault convictions and a sexual assault conviction. He also has convictions which include impersonation with intent, mischief under and fail to comply with probation. In addition, he was found to be in breach of his statutory release conditions on two occasions.

[35] The appellant has been diagnosed with Attention Deficit Disorder. He also was injured during a flag football game, which resulted in his being in a coma for three days and required him to undergo brain surgery. He was left with a slight brain injury.

[36] It is apparent from the pre-sentence report that the appellant has a serious drug addiction. He began experimenting with drugs while in high school at 17 years of age. While incarcerated, he has participated in drug abuse programs but with very little success.

[37] Both he and his family attribute his criminal behaviour to his drug addiction. The appellant claims that he was on drugs at the time of this offence and that he has no recollection of his actions relating to the events of that evening.

[38] While in custody awaiting trial on this matter at the Niagara Detention Centre, the appellant attended various programs, including Alcoholics Anonymous, Al-Anon, Narcotics Anonymous, Faith Circle Group, Lifeskills and pastoral counselling.

[39] Neither counsel for the Crown nor counsel for the appellant was able to provide us with any authorities which come close to the facts before the court. Counsel for the appellant referred us [page250] to four "stalking" cases where the accused persons had engaged in harassing conduct after prior relationships had been terminated: R. v. Bates, 2000 CanLII 5759 (ON CA), [2000] O.J. No. 2558, 146 C.C.C. (3d) 321 (C.A.); R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555, 205 C.C.C. (3d) 488 (C.A.); R. v. De la Cruz, 2003 CanLII 42069 (ON CA), [2003] O.J. No. 1971, 174 C.C.C. (3d) 554 (C.A.); and R. v. White, 2003 CanLII 4140 (ON CA), [2003] O.J. No. 2544, 176 C.C.C. (3d) 396 (C.A.). The four accused received medium to high range reformatory sentences.

[40] The facts in each of these cases are very different from the facts in this case. Suffice it to say that the conduct of the accused in each case occurred over a much longer period of time, was far more serious than the conduct in this case and included convictions for other offences. Also, the circumstances of each of the accused is very different. Three of the four (Bates, De la Cruz and White) had no prior criminal record.

[41] Due to the above differences, I find it difficult to draw any specific conclusions from those cases that would assist in the case before us. One cannot discern a range of sentencing from the criminal harassment cases.

[42] Counsel for the Crown in this appeal makes the point that "[c]riminal harassment can be committed in so many different ways that it defies the range setting exercise". This observation is taken directly from R. v. Linden, 2000 CanLII 15854 (ON CA), [2000] O.J. No. 2789, 147 C.C.C. (3d) 299 (C.A.), at para. 2, in respect of sentences for criminal negligence causing death. I agree with the Crown's submission that the observation applies to criminal harassment cases.

[43] Counsel for the Crown submits that the focus here should be on specific deterrence and protection of the public. He argues that the court needs to send a message to the appellant and to the public that conduct of this nature towards a vulnerable victim will not be tolerated. He further submits that the appellant's criminal record including convictions for violent crime leads to the conclusion that we should not interfere with the three-year penitentiary sentence.

[44] I accept that the appellant needs to be incarcerated for a significant period of time for this offence given his criminal record. However, I do not agree that the trial judge gave sufficient weight to the nature of the offence. I conclude that a three-year penitentiary term is disproportionate to the conduct underlying the offence and therefore manifestly unfit. I believe that a sentence of two years plus a three-year term of probation will send the correct message to the appellant and to the public. The appellant is still relatively young, and a lengthy period of probation with appropriate conditions may, finally, break the cycle of release from jail, drug abuse and return to jail. [page251]

[45] In the result, I would grant leave to appeal sentence, allow the sentence appeal, set aside the sentence at trial and substitute a period of incarceration of two years with credit for time already served. On release from custody, I would place the appellant on probation for three years on the following conditions: (a) the mandatory conditions contained in s. 732.1(2) of the Criminal Code; (b) report to a probation officer within two days of his release from custody and thereafter every two weeks; (c) remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the probation officer; (d) abstain from the consumption of alcohol and non- prescription drugs and other intoxicating substances; (e) abstain from owning, possessing or carrying a weapon; (f) participate actively in a drug and alcohol treatment program approved by the province and selected and approved by the probation officer; (g) abstain from any contact of any kind with the complainant.

Disposition

[46] I would dismiss the appeal from conviction. I would grant leave to appeal sentence and I would allow the sentence appeal as indicated in para. 45 above.

Appeal from conviction dismissed; sentence appeal allowed.

ADDENDUM March 20, 2009

[1] R.P. ARMSTRONG J.A.: -- In reasons for judgment released on February 2, 2009, we granted leave to appeal sentence and allowed the sentence appeal by reducing the three-year sentence to two years plus probation for three years.

[2] After the reasons for judgment were released, counsel for the appellant advised the court that he believed that the probation order was illegal. He brought to our attention the fact that [page252] he trial judge had made the original sentence consecutive to a previous sentence of five years and nine months, which the appellant was still serving at the time of his sentencing. The previous sentence expired on March 18, 2008.

[3] Counsel for the appellant submits that pursuant to s. 139 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the "CCRA"), the appellant, at the time he was sentenced by the trial judge, was deemed to be serving a single merged sentence of five years and nine months plus the new three-year sentence. Section 139(1) of the CCRA provides:

139(1) Where a person who is subject to a sentence that has not expired receives an additional sentence, the person is, for the purposes of the Criminal Code, the Prisons and Reformatories Act and this Act, deemed to have been sentenced to one sentence commencing at the beginning of the first of those sentences to be served and ending on the expiration of the last of them to be served.

[4] Counsel for the appellant submits that by reason of the application of s. 139(1) of the CCRA, there is a merged sentence in this case that exceeds two years and a probation order is not available. He relies on the reasons for judgment of this court in R. v. Currie (1982), 1982 CanLII 3887 (ON CA), 65 C.C.C. (2d) 415, at p. 416:

In our opinion, s. 14 of the Parole Act does not avail to make the sentence pronounced on January 8, 1980, one which, of and by itself, contravened s. 663(1)(b) [am. 1972, c. 13, s. 58] of the Criminal Code in so far as the probation order is concerned. Nevertheless, in our opinion, an order of probation should not be imposed when it is made to follow a sentence of not more than two years if that sentence, when added to the remaining portion of another sentence then being served to which it is made consecutive, in its totality exceeds two years. In our opinion the intention of Parliament as it emerges from s. 663(1)(b) [now s. 731(1)(b)] was to limit the making of probation orders to situations where either the sentence to be served or the totality of all sentences then to be served, as the case may be, does not exceed the period of two years specified in s. 663(1)(b). (Citations omitted.)

[5] Section 14 of the Parole Act, R.S.C. 1970, c. P-2, as amended by R.S.C. 1970, c. 31 (1st supp.), s. 1, and S.C. 1977-78, c. 22, s. 19, is a predecessor to s. 139 of the CCRA, which replaced the Parole Act in 1992. Section 663(1)(b) [of the Criminal Code, R.S.C. 1970, c. C-34] , as noted above, is now s. 731(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. It is worth noting that this court in Currie arrived at its decision without relying on the legal fiction of merger contained in s. 14 of the Parole Act. No explanation was given for the court's view of s. 14. However, in R. v. Miller (1987), 1987 CanLII 6791 (ON CA), 36 C.C.C. (3d) 100, Howland C.J.O., writing for the court, at p. 104, said that "[t]he operation of s. 14(1) of the Parole Act must be borne in mind." Although Howland C.J.O. adopts [page253] Currie, he suggests that s. 14 of the Parole Act strengthens the opinion that where the totality of sentences exceeds two years, a probation order is not available.

[6] Counsel for the appellant also submits that during the sentencing hearing, both trial counsel for the appellant and counsel for the Crown advised the trial judge that probation was not available in this case.

[7] Counsel for the Crown on appeal takes a different position. He submits that the Court of Appeal imposed a fresh sentence on February 2, 2009. As of February 2, 2009, there was no other sentence already being served. Therefore, merger was not an issue. He further submits that, even if merger applies, in a recent judgment of this court in R. v. Carrignan (2003), 2003 CanLII 19233 (ON CA), 172 C.C.C. (3d) 1, leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 153, Cronk J.A. restricted the purpose of s. 139 of the CCRA to merging sentences for the purpose of parole eligibility but "to no broader purpose".

[8] There are three separate reasons for judgment in Carrignan. None addresses directly the issue of merger as it arises in this case. I note that in Carrignan, there are different views of the application and reach of s. 139(1) of the CCRA. Based on Currie, it is not necessary to decide the issue before us by the application of s. 139(1). However, as Howland C.J.O. suggested in Miller, the analysis is strengthened by reference to s. 139(1) of the CCRA.

[9] I now turn to the relevant provisions of the Criminal Code. Pursuant to s. 687(1)(a) and (b) of the Criminal Code, this court's jurisdiction is either to vary the sentence or dismiss the sentence appeal. I further note that s. 687(2) provides:

687(2) A judgment of a court of appeal that varies the sentence of an accused who was convicted has the same force and effect as if it were a sentence passed by the trial court. Also, s. 719(1) of the Criminal Code provides:

719(1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

[10] Based on the above, I do not agree that the sentence we imposed on February 2, 2009 is a "fresh" sentence. The sentence we imposed is deemed to be effective as of the date of the original sentence of the trial judge. The reasons in Currie therefore apply and an order for probation is not available. This result is also consistent with the position taken by both defence counsel and Crown counsel at trial.

[11] Finally, counsel for the Crown has noted that the court issued its final order in this matter on February 3, 2009. Although [page254] he does not expressly submit that the court cannot now vary its order, I feel obliged to address such issue briefly out of an abundance of caution.

[12] I am satisfied that the court has inherent jurisdiction to correct an error such as this: see R. v. H. (E.) (1997), 1997 CanLII 418 (ON CA), 33 O.R. (3d) 202 (C.A.), at p. 207. Also, pursuant to s. 683(3) of the Criminal Code:

683(3) A court of appeal may exercise, in relation to proceedings in the court, any powers not mentioned in subsection (1) that may be exercised by the court on appeals in civil matters, . . . In civil matters, rule 59.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides:

59.06(1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in a proceeding.

[13] In the result, I would strike the probation order made on February 2, 2009.