CITATION: R. v. Livingstone, 2009 ONCA 213

DATE: 20090306

DOCKET: C49251

COURT OF APPEAL FOR ONTARIO

Moldaver, MacFarland and Epstein JJ.A.

BETWEEN:

Her Majesty the Queen

Appellant

and

Steven Livingstone

Respondent

Catrina Braid for the appellant

Catriona Verner for the respondent

Heard and endorsed: March 2, 2009

On appeal from sentence imposed by Justice Patrick A. Sheppard of the Ontario Court of Justice dated July 23, 2008.

APPEAL BOOK ENDORSEMENT

[1] Counsel concedes that the trial judge erred in imposing a conditional sentence in view of his belief that the respondent’s crimes called for a penitentiary sentence. We agree. It follows that we need not show deference and are required to impose a sentence that we consider to be fit.

[2] In the circumstances of this case, while we accept that the respondent’s crimes were serious – 3 counts of possession for the purpose of trafficking in cocaine; possession of proceeds of crime and fail to comply with a recognizance – we think it would have been open, at trial, to impose a conditional sentence of 2 years less one day, plus 3 years probation. Put differently, we are not persuaded that such a sentence would have involved an error in principle or been so manifestly unfit so as to necessitate appellate intervention.

[3] With that in mind, we note that the respondent has now served the equivalent of 25 months in custody. Crown counsel concedes as much. We also take special note of the fresh evidence that has been filed on the respondent’s behalf and which shows that he is making tremendous strides to overcome his drug problems, to enhance his education, and to alter the destructive lifestyle that he has led since age 12. (He is now 24). The progress that he has made to date is best summed up by his “Gladue Afterwork Worker”, Mr. Ringuette, who describes the respondent as “one of the greatest success stories in our program” and someone who “is genuinely determined to make great changes in his life and will continue to progress and become perhaps even a prominent member of our community”.

[4] In these circumstances, we are of the view that the appropriate disposition is one of time served plus 3 years probation on terms and conditions agreed to by the parties and approved by the court. A copy of said terms and conditions is attached hereto.