COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cornish, 2016 ONCA 578

DATE: 20160727

DOCKET: C58759

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Cornish

Appellant

Jay Cornish, acting in person

Ingrid Grant, duty counsel

Lorna Bolton, for the respondent

Heard: July 13, 2016

On appeal from the conviction entered on April 2, 2014 and the sentence imposed on April 25, 2014 by Justice Gregory A. Pockele of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant was convicted of counts of criminal harassment and assault and sentenced to imprisonment for a term of three years on the conviction of criminal harassment and six months concurrent on the conviction of assault. The offences occurred on Remembrance Day, 2013 in respect of a complainant who was a mid-day passenger on a London Transit Bus. The conduct extended over a period of about 10-15 minutes.

[2] The appellant appeals conviction and seeks leave to appeal sentence. The conviction appeal was not pressed and is dismissed.

[3] The appellant was then 38 and is now 40 years of age. He is a dedicated recidivist whose record, including 6 prior convictions for criminal harassment, 3 for sexual assault and 13 for fail to comply with various forms of release spans over two decades.

[4] Leaving to one side considerations of pre-disposition custody, the lengthiest sentence previously imposed on the appellant is 12 months in a reformatory, which he has received twice on a convictions of criminal harassment and sexual assault. He has now served over 27 months of the 3 year sentence imposed by the trial judge.

[5] The appellant suffers from Asperger’s Syndrome.

[6] The position of duty counsel is that the sentence imposed in this case is at odds with the fundamental principle of proportionality. It overemphasizes the gravity of the offence and pays inadequate heed to the moral blameworthiness of a person in a compromised condition such as this appellant.

[7] We agree that the sentence imposed offends the proportionality principle. It also fails to properly respect the “step” principle. As a first penitentiary sentence, a fit sentence, in our view would have been a sentence of two years. This would have satisfied the proportionality principle, not violated the “step” principle and met the ends of justice.

[8] In light of the fact that the appellant has served more than 27 months of his sentence, we would grant leave to appeal sentence, allow the appeal and substitute for the sentence imposed at trial a sentence of time served plus one day. The ancillary orders made by the trial judge remain in effect.

“David Watt J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”