



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ellis, 2016 ONCA 529

DATE: 20160704

DOCKET: C60494

Simmons, van Rensburg and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raymond Ellis

Appellant

Breana Vandebeek, for the appellant

Jessica Smith Joy, for the respondent

Heard: November 26, 2015

On appeal from the convictions entered by Justice Thomas
    P. Cleary of the Ontario Court of Justice on December 30, 2014 and the sentences
    imposed on February 27, 2015.

By the Court:

[1]

On May 11, 2016, this court allowed, in part, the appellants conviction
    appeal from two convictions for attempted possession of a firearm. We quashed
    one of the convictions for attempted possession of a firearm and upheld the
    other. In light of our decision, we invited counsel to submit written
    submissions on sentence if so advised.

[2]

Counsel have now filed the transcript of the sentencing hearing and
    filed brief written submissions concerning the impact of our May 2016 decision
    on sentencing.

[3]

The trial judge imposed concurrent sentences for the two offences of:
    seven months imprisonment (after allowing 11 months credit for pre-sentence
    custody on a 1.5:1 basis), 3 years probation, a 10-year weapons prohibition,
    and a $400 victim fine surcharge.

[4]

The appellant has served the custodial portion of his sentence. He asks
    that the sentence for the remaining conviction be varied to reduce the sentence
    to time served and to reduce the victim fine surcharge to $200.

[5]

The Crown agrees that the victim fine surcharge should be reduced as
    proposed but opposes what would be an effective reduction in the probationary
    term from three years to approximately one year. While the Crown acknowledges
    that the trial judge treated the appellants attempt to possess two guns as an
    aggravating feature, the Crown submits that his reasons reflect that this
    factor was aggravating in relation to the period of imprisonment only and that
    the probationary terms were imposed in response to the pre-sentence report and
    had a rehabilitative purpose. The Crown contends that the three-year term of
    probation is a fit component of the sentence for the remaining offence and this
    offender.

[6]

We do not read the trial judges reasons as treating the appellants
    attempt to possess two guns as an aggravating feature solely in relation to the
    appropriate term of imprisonment. Moreover, we note that the appellant has now
    served the entire custodial portion of his sentence.

[7]

In the circumstances, given that we quashed one of the appellants two
    convictions for attempted possession of a firearm, we would vary the concurrent
    sentence imposed for the remaining conviction by varying the period of
    probation imposed from three years to two years and by reducing the victim fine
    surcharge from $400 to $200. All other terms of the sentence imposed for the
    remaining conviction remain the same.

Released:

JUL 4 2016                                       Janet
    Simmons J.A.

JS                                                     K.
    van Rensberg J.A.

M.L.
    Benotto J.A.


