Court of Appeal for Ontario

Citation: R. v. Ellis, 2016 ONCA 529

Date: 20160704

Docket: C60494

Before: Simmons, van Rensburg and Benotto JJ.A.

Between

Her Majesty the Queen

Respondent

and

Raymond Ellis

Appellant

Counsel: Breana Vandebeek, for the appellant Jessica Smith Joy, for the respondent

Heard: November 26, 2015

On appeal from the convictions entered by Justice Thomas P. Cleary of the Ontario Court of Justice on December 30, 2014 and the sentences imposed on February 27, 2015.

By the Court:

[1] On May 11, 2016, this court allowed, in part, the appellant’s conviction appeal from two convictions for attempted possession of a firearm. We quashed one of the convictions for attempted possession of a firearm and upheld the other. In light of our decision, we invited counsel to submit written submissions on sentence if so advised.

[2] Counsel have now filed the transcript of the sentencing hearing and filed brief written submissions concerning the impact of our May 2016 decision on sentencing.

[3] The trial judge imposed concurrent sentences for the two offences of: seven months’ imprisonment (after allowing 11 months’ credit for pre-sentence custody on a 1.5:1 basis), 3 years’ probation, a 10-year weapons prohibition, and a $400 victim fine surcharge.

[4] The appellant has served the custodial portion of his sentence. He asks that the sentence for the remaining conviction be varied to reduce the sentence to time served and to reduce the victim fine surcharge to $200.

[5] The Crown agrees that the victim fine surcharge should be reduced as proposed but opposes what would be an effective reduction in the probationary term from three years to approximately one year. While the Crown acknowledges that the trial judge treated the appellant’s attempt to possess two guns as an aggravating feature, the Crown submits that his reasons reflect that this factor was aggravating in relation to the period of imprisonment only and that the probationary terms were imposed in response to the pre-sentence report and had a rehabilitative purpose. The Crown contends that the three-year term of probation is a fit component of the sentence for the remaining offence and this offender.

[6] We do not read the trial judge’s reasons as treating the appellant’s attempt to possess two guns as an aggravating feature solely in relation to the appropriate term of imprisonment. Moreover, we note that the appellant has now served the entire custodial portion of his sentence.

[7] In the circumstances, given that we quashed one of the appellant’s two convictions for attempted possession of a firearm, we would vary the concurrent sentence imposed for the remaining conviction by varying the period of probation imposed from three years to two years and by reducing the victim fine surcharge from $400 to $200. All other terms of the sentence imposed for the remaining conviction remain the same.

Released:

“JUL 4 2016” “Janet Simmons J.A.”

“JS” “K. van Rensberg J.A.”

“M.L. Benotto J.A.”