Summary conviction appeal judge made clear error of law

Ontario criminal | Appeal

Sentence appeal

Summary conviction appeal judge made clear error of law

Accused appealed decision of summary conviction appeal judge, who found that sentencing judge erred in law when, as part of his reasons for sentence for two offences under Customs Act, he stated that accused did not deliberately fail to pay duty owed. Leave to appeal granted; decision of summary conviction appeal judge set aside and sentence of trial judge restored. Sentencing judge made no legal error but was responding to submissions of Crown counsel and response of defence counsel to issue of whether accused had planned and deliberated her conduct and whether to treat that as aggravating factor on sentence. Summary conviction appeal judge misapprehended this finding by sentencing judge by treating it as misunderstanding by him of mens rea requirement of offences. Summary conviction appeal judge made clear error of law, which reflected failure to give deference to trial judges’ knowledge of law. Accused also asked court to stay one of convictions on Kienapple principle. This was not done at trial. Crown opposed this submission. In those circumstances and as sentence imposed was conditional discharge, court declined to give effect to that submission.
R. v. Du (Oct. 26, 2015, Ont. C.A., K. Feldman J.A., M.L. Benotto J.A., and L.B. Roberts J.A., File No. CA C59981) Leave to appeal from 118 W.C.B. (2d) 537 was allowed.  125 W.C.B. (2d) 352.

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