CITATION: R. v. Sidhu, 2009 ONCA 589

DATE: 20090724

DOCKET: C48026

COURT OF APPEAL FOR ONTARIO

Simmons, Rouleau and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

And

Jaspal Sidhu

Applicant/Appellant

William J. Parker, Q.C. and A.C. Dekany for the appellant

Gavin MacDonald for the respondent

Heard and endorsed: July 22, 2009

On appeal from conviction by Justice Walter S. Gonet of the Ontario Court of Justice, dated August 23, 2007, and sentence imposed, dated November 29, 2007.

APPEAL BOOK ENDORSEMENT

[1] Taking into account the observations of the investigating police officers, the Crown's case with respect to the offences involving the four teenaged girls was overwhelming. The door frame to the home was broken and there was a visible pry mark on the door. Moreover, contrary to the appellant’s claim, the officers observed no injuries to the appellant and no damage to his vehicle. Considered in this context, there was no air of reality to the appellant's version of events, which was introduced by filing a DVD of his testimony at the pre-enquệte hearing held to determine whether process should issue in the appellant’s private complaint against the four teenaged girls. In our view, any references by the trial judge to Mr. Wilson's evidence in relation to these offences was peripheral to his reasons and we would not interfere with his findings on counts 1, 2, 3 and 4.

[2] However, we agree that the trial judge made a significant error when he referred to the evidence of Mr. Mann as confirming the evidence of Mr. Wilson. Mr. Mann did not testify at trial. The trial judge evidently confused some of Mr. Wilson's evidence as emanating from Mr. Mann. We are unable to say that the trial judge's reliance on the non-existent evidence of Mr. Mann was not an essential part of his assessment of Mr. Wilson's evidence. Mr. Wilson's evidence was central to the obstruct justice, perjury and fabricating evidence offences. The convictions for these offences cannot stand.

[3] Accordingly, the conviction appeal is allowed in part, the convictions for obstructing justice, perjury, and fabricating evidence are set aside and a new trial is ordered on counts 5, 6 and 7.

[4] Given that a mixture of concurrent and consecutive sentences were imposed with respect to the various offences and that we have allowed the conviction appeal in part, it is necessary that we revisit the issue of sentence.

[5] Having regard to the serious nature of the offences for which conviction has been upheld, including the fact that they involved a home invasion, in our view, a fit sentence is six months’ imprisonment. The combination of death threats, forcible entry, and the use of a weapon that were present in this case make a conditional sentence inappropriate. In the circumstances of this case, a conditional sentence would not satisfy the sentencing goals of denunciation and deterrence. We would not interfere with the period of probation imposed.

[6] Accordingly, the sentence appeal is allowed, the sentence imposed by the trial judge on counts 1, 2, 3, and 4 is set aside, and a global sentence of six months imprisonment is substituted with the original period of probation to remain