Court of Appeal for Ontario

Date: 2018-10-15 Docket: C65616

Judges: Simmons, Rouleau and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Jody Faucher Appellant

Counsel

Michael Dineen, as duty counsel Jody Faucher, acting in person Andrew Hotke, for the respondent

Heard: October 1, 2018

Appeal Book Endorsement

[1] The appellant pleaded guilty to unauthorized use of credit card data. He was sentenced to 18 months' imprisonment in addition to credit for 90 days pre-sentence custody plus three years' probation.

[2] On behalf of the appellant, duty counsel argues that the trial judge erred in imposing house arrest and curfew terms as terms of the probation order because they were not reasonable conditions imposed to protect society or facilitate the appellant's reintegration into the community under s. 732.1(3)(h) of the Criminal Code.

[3] We reject this submission.

[4] We acknowledge that probation has traditionally been viewed as a rehabilitative sentencing tool and that conditions imposed to punish rather than rehabilitate the offender have been struck out: R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at paras. 32 and 33.

[5] However, we note that, in this case, the sentence imposed was negotiated at a judicial pre-trial and resulted in a joint submission that was accepted by the sentencing judge. Although the Crown submitted that a portion of the sentence should be seen as partially punitive, the appellant's trial counsel supported the sentence on the basis that it would serve as a catalyst to turn the appellant's life around and allow him, the only son, to support his ailing mother – in other words, because it would assist in the appellant's rehabilitation.

[6] Because of the nature of the proceeding as a joint submission, the trial judge did not articulate the basis on which he accepted the impugned terms. It would have been preferable had he done so.

[7] Without endorsing the use of house arrest and curfews as probationary terms, on the limited record before us and in the unique circumstances of this case (including the appellant's circumstances as articulated by trial counsel), we are not prepared to give effect to the submission made for the first time on appeal and say that the impugned terms were illegal as being in contravention of s. 732.1(3)(h).

[8] Leave to appeal sentence is granted but the appeal is dismissed.