CITATION: R. v. Topp, 2009 ONCA 828

DATE: 20091124

DOCKET: C48880

COURT OF APPEAL FOR ONTARIO

Moldaver, Goudge and Rouleau JJ.A.

BETWEEN:

Her Majesty The Queen

Applicant (Appellant)

and

John Phillip Topp

Respondent

Xenia Proestos, for the appellant

John Topp, in person

Heard and endorsed: November 20, 2009

On appeal against sentence imposed by Justice Deena Baltman of the Superior Court of Justice dated May 6, 2008.

APPEAL BOOK ENDORSEMENT

[1] While this is a close call, we think it was open to the trial judge, on the record before her and the submissions of defence counsel, to find that the respondent did not have the ability to pay the fine.

[2] Accordingly, the appeal is dismissed.

[3] At the request of the Crown, the victim surcharge in the amount of $1,600 is quashed.