Court of Appeal for Ontario

Date: 2017-03-21 Docket: C62782

Judges: Doherty, Huscroft and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

James Dow Appellant

Counsel

For the Appellant: Zachary Kerbel and Saman Wickramasinghe

For the Respondent: Andreea Baiasu

Hearing

Heard: March 20, 2017

On appeal from: The conviction entered on April 11, 2016 by Justice Donohue of the Superior Court of Justice and the sentence imposed on September 19, 2016.

Appeal Book Endorsement

[1] In reviewing a sentence, the court is concerned with fitness and not the accuracy of the range of sentence identified by the trial judge. The trial judge's description of the range as three to five years as opposed to the two to four years suggested by counsel does not constitute an error in principle. Ranges are not airtight compartments. In fact, we think the range could be described as two to five years.

[2] This was a very serious offence which had very significant impact on the victim. A significant penitentiary term was required despite the appellant's youth. We cannot say that 33 months imposed was manifestly unfit. We will not interfere.

[3] The trial judge imposed a lifetime ban under s. 109(2). He gave no reasons and no submissions were made on the issue. Counsel agree that we should consider the issue de novo given the absence of reasons.

[4] In light of the appellant's youth and the absence of any suggestion that he ever misused firearms in the past (including in connection with this offence), we would impose a ten-year ban.

[5] We have considered the "fresh" evidence. It does not affect our disposition.

[6] The sentence is varied accordingly.