Court of Appeal for Ontario

CITATION: R. v. Strachan, 2014 ONCA 373

DATE: 20140509

DOCKET: C58239

BEFORE: Laskin, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Strachan

Appellant

COUNSEL:

Breana Vandebeek, for the appellant

Roger Shallow, for the respondent

HEARD: May 9, 2014

On appeal from the sentence imposed on September 24, 2013 by Justice Jon-Jo Douglas of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] We agree with the appellant that the trial judge erred in principle by failing to consider that this was the appellant’s first period of incarceration. The trial judge also erred in his calculation of pre-sentence custody. In accordance with the Supreme Court of Canada’s decision in Summers the appellant was entitled to 115 days credit for pre-sentence custody.

[2] In all the circumstances we think that the trial Crown’s position of 12 months imprisonment was reasonable.

[3] The Crown also accepts that two conditions of probation ought to be varied:

• para. 11 is varied to provide “Find and maintain suitable employment or attend school as is approved in writing by your probation officer”;

• para. 22 is varied by deleting the reference to S.R. Strachan from this no contact provision.

Otherwise the probation order stands.

[4] Accordingly, we grant leave to appeal sentence, allow the appeal and substitute a sentence of 12 months imprisonment in addition to the 115 days credit for pre-sentence custody, and we vary the probation order as set out above.