Court of Appeal for Ontario

Date: 20210323 Docket: C68692

Rouleau, Pepall and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Steven Lancaster Appellant

Counsel: Tamar Bitton, for the appellant Nicholas Hay, for the respondent

Heard and released orally: March 19, 2021 by video conference

On appeal from the sentence imposed on July 27, 2020 by Justice Angela L. McLeod of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant seeks leave to appeal his sentence of 8 months less 106 days of credit for pre-sentence custody for his conviction for dangerous operation, resisting arrest, breach of probation, and breach of a release order. He also asks that the 12-month driving prohibition be struck from the probation order imposed. Lastly, he seeks leave to admit fresh evidence.

[2] The appellant submits, and the Crown concedes, that the sentencing judge erred in imposing a sentence exceeding that proposed by the parties in the absence of inviting additional submissions. Both submit that the appellant’s sentence should be reduced to time served.

[3] The sentence of six months less credit for pre-sentence custody originally proposed by the Crown was fit. However, the fresh evidence discloses that the appellant has made significant progress towards rehabilitation.

[4] The appellant received bail pending appeal on September 29, 2020. The 31-year-old appellant has been gainfully employed since October 2020. Importantly, he is addressing his drug addiction through Narcotics Anonymous. He has strong family and employer support. He is currently nine days shy of the warrant expiry date based on a six-month sentence. It is not in the public interest to subject the appellant to reincarceration. His sentence should be reduced to time served.

[5] As for the driving prohibition, the sentencing judge found his driving to be abominable. At his sentencing hearing, the appellant sought a driving prohibition of six months. As such, the imposition of such a condition cannot be considered inappropriate. In our view, a 12-month driving prohibition is a fit condition in the circumstances of the offences. We see no reason to interfere with the conditions imposed by the sentencing judge.

[6] The issue of the Duncan credit is moot given that we have reduced the sentence to time served. We see no need to address this issue on the record before us.

[7] Leave to admit the fresh evidence and to appeal sentence are granted and the sentence appeal is allowed. The appellant is sentenced to time served on the same conditions imposed by the sentencing judge.

“Paul Rouleau J.A.”

“S.E. Pepall J.A.”

“L.B. Roberts J.A.”