Court of Appeal for Ontario

Date: 2019-01-16 Docket: C65300

Judges: Simmons, Lauwers and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Andrew Fiddes Appellant

Counsel

Andrew Fiddes, in person

Hannah Freeman, for the respondent

Heard

January 14, 2019

Appeal Information

On appeal from the conviction entered on November 17, 2017, and the sentence imposed on March 21, 2018, by Justice K.L. Lische of the Ontario Court of Justice.

Reasons for Decision

[1] At the conclusion of the hearing of this appeal, for reasons to follow, we dismissed the conviction appeal but allowed the sentence appeal. These are our reasons.

[2] The appellant was convicted of eight offences following his arrest for the January 26, 2017 break and enter of a Sudbury pharmacy: break, enter and theft; possession of stolen property valued at over $5,000 (2776 Lorazepam pills valued at $13,880); possession of break-in instruments (bolt cutters); three counts of possession of ammunition while prohibited; and two counts of unlawful possession of a Schedule 1 substance (Buprenorphine and Methadone).

[3] The appellant was sentenced to three years' imprisonment less 455 days credit for pre-sentence custody on the breaking and entering charge (count 1), leaving a remaining sentence of imprisonment of 640 days; and to concurrent sentences ranging from three months' imprisonment to one-year imprisonment on the other counts.

Charter Application and Trial Decision

[4] The trial judge found that a police officer who viewed surveillance videos and still photographs of the pharmacy and the building in which it was located had subjective and objectively reasonable grounds to believe that the appellant was the perpetrator of the break-in at the pharmacy. She therefore dismissed the appellant's application under ss. 8, 9 and 24 of the Canadian Charter of Rights and Freedoms.

[5] Relying on the officer's evidence, the surveillance evidence, the evidence of a building superintendent, a pharmacy employee and various police officers involved in the appellant's arrest and the execution of a search warrant, the trial judge found the appellant guilty of the offences with which he was charged.

Conviction Appeal

[6] On appeal, the appellant argued that he entered through an open door and that rather than being convicted of break, enter and theft, he should have been found guilty of unlawful entry and theft. He noted that the drugs he stole were relatively benign and that he did not break anything while in the pharmacy. He also submitted that he was not identified at the scene of the crime.

[7] We did not accept these submissions. The appellant did not testify at trial. The evidence before the trial judge supported a finding of break, enter and theft and confirmed the appellant's identity as the perpetrator of the break-in. The findings of guilt on the other offences were supported by evidence of items found in the appellant's possession. We therefore dismissed the appellant's conviction appeal.

Sentence Appeal

[8] Concerning sentence, we accepted the appellant's submission that, in the particular circumstances of this case, the trial judge erred by failing to consider, as a mitigating factor on sentence, the serious injuries the appellant suffered as a result of being beaten while in pre-sentence custody. Although the trial judge noted that the appellant had been injured while in custody, she did not enumerate his injuries (four broken ribs, two punctured lungs, a brain injury); nor allude to their serious nature (life threatening). These injuries had a significant impact on the appellant and warranted serious consideration on sentencing. Given their passing mention in her reasons, we are unable to accept the Crown's submission that it is implicit in the trial judge's reasons that she gave the fact of the injuries any mitigating effect.

[9] In the circumstances, we allowed the sentence appeal and reduced the remaining sentence imposed on count 1 to 300 days and the sentence imposed on count 2 to 300 days, concurrent to the sentence on count 1, such that the appellant's sentence was fully served. We also set aside the mandatory victim fine surcharge the trial judge had imposed: R. v. Boudreault, 2018 SCC 58. The remaining terms of the original sentence remain in full force and effect.

"Janet Simmons J.A."

"P. Lauwers J.A."

"G.T. Trotter J.A."