



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Faucher, 2018 ONCA 815

DATE: 20181015

DOCKET: C65616

Simmons, Rouleau and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jody Faucher

Appellant

Michael Dineen, as duty counsel

Jody Faucher, acting in person

Andrew Hotke, for the respondent

Heard: October 1, 2018

APPEAL BOOK ENDORSEMENT

[1]

The appellant pleaded guilty to unauthorized use of credit card data. He
    was sentenced to 18 months imprisonment in addition to credit for 90 days
    pre-sentence custody plus three years' probation.

[2]

On behalf of the appellant, duty counsel argues that the
    trial judge erred in imposing house arrest and curfew terms as terms of the
    probation order because they were not reasonable conditions imposed to protect
    society or facilitate the appellant's reintegration into the community under s.
    732.1(3)(h) of the
Criminal Code.

[3]

We reject this submission.

[4]

We acknowledge that probation has traditionally been viewed as a
    rehabilitative sentencing tool and that conditions imposed to punish rather
    than rehabilitate the offender have been struck out:
R. v. Proulx
(2000), 140 C.C.C. (3d) 449 (S.C.C.) at paras. 32 and 33.

[5]

However, we note that, in this case, the sentence imposed was negotiated
    at a judicial pre-trial and resulted in a joint submission that was accepted by
    the sentencing judge. Although the Crown submitted that a portion of the
    sentence should be seen as partially punitive, the appellant's trial counsel
    supported the sentence on the basis that it would serve as a catalyst to turn
    the appellant's life around and allow him, the only son, to support his ailing
    mother  in other words, because it would assist in the appellant's
    rehabilitation.

[6]

Because of the nature of the proceeding as a joint submission, the trial
    judge did not articulate the basis on which he accepted the impugned terms. It
    would have been preferable had he done so.

[7]

Without endorsing the use of house arrest and curfews as probationary terms,
    on the limited record before us and in the unique circumstances of this case
    (including the appellants circumstances as articulated by trial counsel), we
    are not prepared to give effect to the submission made for the first time on
    appeal and say that the impugned terms were illegal as being in contravention
    of s. 732.1(3)(h).

[8]

Leave to appeal sentence is granted but the appeal is dismissed.


