Court File and Parties

Citation: R. v. Budarick, 2009 ONCA 858 Date: 2009-12-04 Docket: C50840 Court of Appeal for Ontario

Before: Laskin, Sharpe and Gillese JJ.A.

Between:

Her Majesty the Queen Appellant

and

Brent Budarick Respondent

Counsel: Riun Shandler, for the appellant Brent Budarick, acting in person

Heard: December 3, 2009

On appeal from the sentence imposed on July 10, 2009 by Justice James A. Fontana of the Ontario Court of Justice.

Appeal Book Endorsement

[1] The conditional sentence imposed by the trial judge was an illegal sentence. Under s. 742.1 of the Criminal Code, a conditional sentence is not available for a conviction for sexual assault where, as here, the Crown proceeded by way of indictment.

[2] We, therefore, set aside the conditional sentence.

[3] However, we do not think that it is now appropriate to incarcerate the respondent. He was on bail with conditions for 10 months, served two days in jail, and, as well, served five months of his conditional sentence under house arrest. He has taken positive steps towards rehabilitation, which include attending counselling sessions and seeing a doctor at the Royal Ottawa Hospital. He now has a full time job and supports his children.

[4] In all of these circumstances, we are of the view that the appropriate sentence is one of time served.