Court of Appeal for Ontario

Citation: R. v. Butler, 2010 ONCA 216 Date: 2010-03-18 Docket: C50862

Between: Her Majesty the Queen (Respondent) and James William Butler (Applicant/Appellant)

Before: Blair, LaForme JJ.A. and Durno J. (Ad Hoc)

Counsel: L. Strezos, duty counsel Holly Loubert, for the respondent

Heard: March 17, 2010

On appeal from the judgment of Justice G. Mark Hornblower of the Ontario Court of Justice dated April 27, 2009.

Appeal Book Endorsement

[1] On their admissions at trial, Mr. Butler and Ms. Hammond were co-participants in a scheme to defraud an estate through proceedings in Small Claims Court based on forged documents. They plead guilty. Mr. Butler received an 18-month conditional sentence plus 12 months’ probation – a sentence considerably longer than the 90-day conditional sentence imposed on Ms. Hammond (and upheld here in a companion endorsement). Unlike Ms. Hammond, however, Mr. Butler has a lengthy criminal record including convictions for theft, fraud and uttering forged documents. Although there was a gap between the commission of this offence and the offences comprising the record, the sentencing judge took this into account.

[2] We can find no error in principle in the judge’s disposition nor do we think the sentenced imposed was demonstrably unfit. This was a serious offence involving an attempted fraud on an estate through the use of forged documents and utilizing the courts as an instrument of the fraud. The public interest required a sharp sentence which the sentencing judge chose to implement through a conditional sentence to be served in the community rather than actual incarceration. We see no error nor do we think it appropriate to re-adjust the sentence on the basis that Mr. Butler has been on bail pending the disposition of the appeal.

[3] Accordingly, leave to appeal sentence is granted but the sentence appeal is dismissed.

[4] Mr. Butler has abandoned his appeal from conviction. It is therefore dismissed as abandoned.