Court of Appeal for Ontario

Date: 2019-04-02 Docket: C64920

Judges: Hoy A.C.J.O., Doherty and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Kathleen Barry Appellant

Counsel

Etai Hilzenrat, for the appellant Candice Suter, for the respondent

Heard and released orally: March 25, 2019

On appeal from: the conviction entered on November 17, 2017 and the sentence imposed on January 15, 2018 by Justice David P. Cole of the Ontario Court of Justice.

Reasons for Decision

[1] The evidence in this trial was heard over a single day. The defence called no evidence and made very brief submissions, focussing on the issues of identity and the appellant's liability as an aider and abettor.

[2] Immediately following the trial, the trial judge provided brief oral reasons for judgment. He found the appellant guilty of three thefts at Shoppers Drug Mart and not guilty of two thefts from No Frills. The trial judge sentenced the appellant to a term of imprisonment of six months (two months times three), as well as to two years' probation, and a victim surcharge in a total amount of $600.00.

[3] The appellant argues that the trial judge gave inadequate reasons to support the identification of her as the woman in the surveillance videos, the finding that the underlying offences of theft were committed, and the conclusion that she was guilty as a party to the offences.

[4] We reject these arguments.

[5] While the trial judge's reasons were brief, we are satisfied that his reasons were responsive to the issues raised by defence counsel in his submissions, are reasonably intelligible to the parties, and, in the context of the circumstances of the case and the trial record, provide a basis for a meaningful appellate review.

[6] In this case, two witnesses who worked at Shoppers Drug Mart and observed the incidents in question identified the appellant and testified to the occurrence of the thefts. Additionally, there were surveillance videos. It is clear that the trial judge accepted the witnesses' evidence. Moreover, the trial judge provided reasons why he concluded the appellant was a party to the thefts.

[7] The appellant also seeks leave to appeal sentence, arguing that the trial judge erred by failing to impose a conditional sentence solely based on the appellant's long criminal record, and by failing to consider whether a conditional sentence would be consistent with the fundamental principles and purposes of sentencing. She seeks leave to file fresh evidence regarding her medical condition, consisting of an affidavit of which she is the affiant and two unsworn letters from her family doctor, Dr. Chan.

[8] Because of the Supreme Court's recent decision in R. v. Boudreault, 2018 SCC 58, 429 D.L.R. (4th) 583, we grant leave to appeal sentence and strike the requirement that the appellant pay a victim surcharge. However, even having regard to the proposed fresh evidence, we are not persuaded that there is any basis to otherwise interfere with the sentence that the trial judge imposed. There were no significant mitigating factors. Given the appellant's 67 prior convictions, including 27 for theft and 20 for breaches of court orders, the sentence imposed was reasonable. Further, the trial judge specifically considered the appellant's medical condition and concluded that a period of incarceration was nonetheless warranted.

[9] Accordingly, the appeal of conviction is dismissed. Leave to appeal sentence is granted, but the appeal as to sentence is dismissed, except with respect to the victim surcharge.

Alexandra Hoy A.C.J.O.

Doherty J.A.

B. Zarnett J.A.