Court of Appeal for Ontario

Citation: R. v. McDonald, 2014 ONCA 512

Date: 2014-07-02

Docket: C52747, C52758

Before: Rosenberg, Epstein and Lauwers JJ.A.

Between:

C52747

Her Majesty the Queen Respondent

and

Dustin McDonald Appellant

C52758

Her Majesty the Queen Respondent

and

Brandon Green Appellant

Counsel: Gerald Chen, for the appellant, Dustin McDonald Mark Halfyard, for the appellant, Brandon Green David Lepofsky and Dan Guttman, for the respondent

Heard and released orally: October 31, 2013

On appeal from the sentence imposed on June 21, 2011 by Justice R.M. Thompson of the Superior Court of Justice, sitting with a jury.

Appeal Book Endorsement

[1] We agree with the appellants that in the unusual circumstances, this is not a case for deference given that the entire emphasis at trial was on the aggravated assault conviction which has now been set aside.

[2] We see no benefit to returning these appellants to custody given the 5 years that has elapsed since the offence, the time spent on bail pending appeal and the 9 days each has spent in custody.

[3] We are also satisfied that notwithstanding the seriousness of this common assault, imposing a discharge would not be contrary to the public interest. There were no serious injuries to the victim who did not file a victim impact statement. The appellants were young and at the time both were first offenders.

[4] We are also satisfied that the public interest can be served and the seriousness of offence reflected in a lengthy term of probation with community service.

[5] A discharge is in the appellant’s interest given their prior good character and the possible impact of a conviction on their prospective careers and in Mr. Green’s ability to travel to be with his family.

[6] Accordingly, leave to appeal is granted. The appeals are allowed, the sentence is set aside and each appellant is granted a conditional discharge with probation for 2 years on the terms imposed by the trial judge with the additional condition that the appellant’s each complete 200 hours of community service.