R. v. McKinnon, 2010 ONCA 828

CITATION: R. v. McKinnon, 2010 ONCA 828

DATE: 20101206

DOCKET: C51416

COURT OF APPEAL FOR ONTARIO

Laskin, Armstrong and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Benjamin Ronald McKinnon

Appellant

Bradley Pearson, for the appellant

Greg Skerkowski, for the respondent

Heard and released orally: December 2, 2010

On appeal from the conviction entered on August 31, 2009 and the sentence imposed on November 29, 2009 by Justice J. D. Evans of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his conviction for public mischief and theft over and his total sentence of nine months.

[2] On the conviction appeal, counsel makes two submissions. First, he argues that the trial judge erred in his application of the approach articulated by the Supreme Court of Canada in W.(D.). He submits that the trial judge failed to consider the appellant’s evidence first. Further, he argues that when he did consider the appellant’s evidence, he considered it in isolation. What the appellant, in effect, argues is that the trial judge reduced his analysis to a credibility contest.

[3] We disagree. Both this court and the Supreme Court of Canada have made it clear that the W.(D.) analysis in a judge alone trial does not involve a strict adherence to a formulaic approach. We see no error.

[4] Second, the appellant’s counsel submits that the trial judge failed to apply the necessary caution to the assessment of the evidence of the appellant’s accomplice in accordance with R. v. Vetrovec. Again, we disagree. The trial judge adopted an appropriately cautionary approach to the accomplice’s evidence and we see no error.

[5] In respect of sentence, the appellant asks this court to impose a conditional sentence or, in the alternative, to reduce the custodial term from a total of nine months to three or four months. Counsel argues that the trial judge erred in his application of the parity principle in view of the fact that his accomplice received a conditional sentence of six months and probation.

[6] In our view, there was a significant difference between the position of the appellant and his accomplice. The accomplice pleaded guilty at the earliest opportunity and thereby indicated his remorse. The appellant was in a position of trust and the crimes of which he was convicted were against his employer. Also, the accomplice assisted the police in the investigation of the case. We see no error in respect of the issue of parity. In our view, a total sentence of nine months is a fit sentence.

[7] In the result, the appeal against conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“John Laskin J.A.”

“Robert P. Armstrong J.A.”

“H.S. LaForme J.A.”