



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cornish, 2016 ONCA 578

DATE: 20160727

DOCKET: C58759

Watt, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Cornish

Appellant

Jay Cornish, acting in person

Ingrid Grant, duty counsel

Lorna Bolton, for the respondent

Heard: July 13, 2016

On appeal from the conviction entered on April 2, 2014
    and the sentence imposed on April 25, 2014 by Justice Gregory A. Pockele of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of counts of criminal harassment and assault
    and sentenced to imprisonment for a term of three years on the conviction of
    criminal harassment and six months concurrent on the conviction of assault. The
    offences occurred on Remembrance Day, 2013 in respect of a complainant who was
    a mid-day passenger on a London Transit Bus. The conduct extended over a period
    of about 10-15 minutes.

[2]

The appellant appeals conviction and seeks leave to appeal sentence. The
    conviction appeal was not pressed and is dismissed.

[3]

The appellant was then 38 and is now 40 years of age. He is a dedicated
    recidivist whose record, including 6 prior convictions for criminal harassment,
    3 for sexual assault and 13 for fail to comply with various forms of release
    spans over two decades.

[4]

Leaving to one side considerations of pre-disposition custody, the
    lengthiest sentence previously imposed on the appellant is 12 months in a
    reformatory, which he has received twice on a convictions of criminal
    harassment and sexual assault. He has now served over 27 months of the 3 year
    sentence imposed by the trial judge.

[5]

The appellant suffers from Aspergers Syndrome.

[6]

The position of duty counsel is that the sentence imposed in this case
    is at odds with the fundamental principle of proportionality. It overemphasizes
    the gravity of the offence and pays inadequate heed to the moral
    blameworthiness of a person in a compromised condition such as this appellant.

[7]

We agree that the sentence imposed offends the proportionality
    principle. It also fails to properly respect the step principle. As a first
    penitentiary sentence, a fit sentence, in our view would have been a sentence
    of two years. This would have satisfied the proportionality principle, not
    violated the step principle and met the ends of justice.

[8]

In light of the fact that the appellant has served more than 27 months
    of his sentence, we would grant leave to appeal sentence, allow the appeal and
    substitute for the sentence imposed at trial a sentence of time served plus one
    day. The ancillary orders made by the trial judge remain in effect.

David
    Watt J.A.

S.E.
    Pepall J.A.

M.
    Tulloch J.A.


