R. v. Danielisz

R. v. Danielisz

The Court held that the appropriate cure for the illegal probation order was to reduce the custodial sentence from 26 months to two years so that the two-year probation order could validly attach, and to amend the no-contact condition to clarify its scope; this preserves the substance and objectives of the original...

Source-derived case information.

Citation
2009 BCCA 401
Parties
Respondent: Regina; Appellant: David Laszlo Danielisz
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
14 September 2009
Procedural Posture
Criminal Sentencing Appeal / Court of Appeal Judgment on Sentence (leave to Appeal Granted in Part)
Outcome
Leave to appeal granted in part; custodial sentence reduced and probation condition amended
Legal Topics
Assault Causing Bodily Harm, Probation Order Illegality Under S.731(1)(b) Criminal Code, No Contact Conditions, Remedies for Illegal Sentencing Components
Source Language
english
Criminal Law Sentencing Probation Law Appeals Assault Causing Bodily Harm Probation Order Illegality Under S.731(1)(b) Criminal Code No Contact Conditions Remedies for Illegal Sentencing Components

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Parties

Regina

Respondent

David Laszlo Danielisz

Appellant

Procedural Posture

Criminal Sentencing Appeal / Court of Appeal Judgment on Sentence (leave to Appeal Granted in Part)

Legal Issues

  1. 1 Whether the probation order was illegal under s.731(1)(b) of the Criminal Code
  2. 2 What remedy should be applied to cure the illegal probation order
  3. 3 Whether the original custodial sentence was fit and should be altered on appeal

Ratio Decidendi

The Court held that the appropriate cure for the illegal probation order was to reduce the custodial sentence from 26 months to two years so that the two-year probation order could validly attach, and to amend the no-contact condition to clarify its scope; this preserves the substance and objectives of the original sentence while curing the illegality.

Court Disposition

Leave to appeal granted in part; custodial sentence reduced and probation condition amended

Orders

  • Reduce custodial sentence from 26 months to 2 years
  • Amend probation condition five to: "You must have no contact whatsoever, directly or indirectly, with Heather Danielisz, even with her consent, except through legal counsel or a family justice or court counsellor."