R. v. B., J.
The Court upheld the conviction because the evidence supported liability on the basis of a joint enterprise despite the trial judge's emphasis on the driver as prime perpetrator, and the sentencing disposition was not unfit given the appellant's probationary status, prior record, and commission of a further offence...
Source-derived case information.
- Citation
- C36477
- Parties
- Respondent: HER MAJESTY THE QUEEN; Appellant: JEFFREY B.
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 15 January 2002
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence (appeal Against Conviction and Disposition)
- Outcome
- Appeal from conviction dismissed; leave to appeal disposition granted but appeal from disposition dismissed; conviction and sentence upheld.
- Legal Topics
- Joint Enterprise, Theft, Sentencing, Probation, Inconsistent Verdicts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
HER MAJESTY THE QUEEN
Respondent
JEFFREY B.
Appellant
Procedural Posture
Criminal / Appeal From Conviction and Sentence (appeal Against Conviction and Disposition)
Legal Issues
- 1 Whether the appellant was legally liable for theft on the basis of joint enterprise
- 2 Whether the trial judge's acquittal on theft constituted an inconsistent verdict requiring appellate intervention
- 3 Whether the disposition (sentence) was unfit including consideration of the appellant's record and offence committed while on probation or awaiting sentence
Ratio Decidendi
The Court upheld the conviction because the evidence supported liability on the basis of a joint enterprise despite the trial judge's emphasis on the driver as prime perpetrator, and the sentencing disposition was not unfit given the appellant's probationary status, prior record, and commission of a further offence while awaiting sentence; therefore both the conviction and the disposition were maintained.
Court Disposition
Appeal from conviction dismissed; leave to appeal disposition granted but appeal from disposition dismissed; conviction and sentence upheld.
Orders
- Appeal from conviction dismissed.
- Leave to appeal disposition granted.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. B., J. Collection Decisions of the Court of Appeal Date 2002-01-15 Docket numbers C36477 Judges McMurtry, Roy; Rosenberg, Marc; MacPherson, James C. Subject Criminal Decision Content DATE: 20020115 DOCKET: C36477 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. JEFFREY B. (A Young Person) (Appellant) BEFORE: McMURTRY C.J.O., ROSENBERG and MacPHERSON JJ.A. COUNSEL: Marc E. Schiffer, for the appellant Kenneth L. Campbell, for the respondent HEARD: December 18, 2001 RELEASED ORALLY: December 18, 2001 On appeal from his conviction by Justice Donald S. Cooper on January 9, 2001 and from the sentence imposed on March 6, 2001. ENDORSEMENT [1] The evidence that this was a joint enterprise from the beginning was compelling. The theft took place in the early morning hours in an isolated area. The appellant’s presence in the van could not have been accidental or coincidental. The appellant and the others were found in the van along with other stolen goods less than forty-five minutes after the theft. In that short time, they had damaged the interior. [2] The trial judge acquitted the appellant of theft because he found that the driver was the prime perpetrator. He erred in failing to consider the appellant’s liability for theft on the basis that he was engaged in a joint enterprise with the driver and the others. This is not a case of inconsistent findings of fact but an error with respect to the legal effect of those findings. See R. v. Ertel (1987), 35 C.C.C. (3d) 398 (Ont. C.A.) at p. 426. The verdicts were not so inconsistent as to require intervention of this court. The appeal from conviction is dismissed. [3] With respect to the disposition, we are all of the view that the disposition was not unfit. The offence was committed while the appellant was on probation. He had a relatively serious record for his age, including convictions for similar offences. As to disparity, there were good grounds for distinguishing the appellant’s position from that of the younger co-accused who had no prior record. The trial judge did not err in principle in taking into account that the appellant committed a further offence while awaiting sentence in deciding whether secure custody was required. [4] Accordingly, while leave to appeal disposition is granted, the appeal from disposition is dismissed. (signed) "Roy McMurtry C.J.O." (signed) "M. Rosenberg J.A." (signed) "J. C. MacPherson J.A."