



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McDonald, 2014 ONCA 512

DATE: 20140702

DOCKET: C52747

C52758

Rosenberg, Epstein and Lauwers JJ.A.

BETWEEN

C52747

Her Majesty the Queen

Respondent

and

Dustin McDonald

Appellant

C52758

Her Majesty the Queen

Respondent

and

Brandon Green

Appellant

Gerald Chen, for the appellant, Dustin McDonald

Mark Halfyard, for the appellant, Brandon Green

David Lepofsky and Dan Guttman, for the respondent

Heard and released orally: October 31, 2013

On appeal from the sentence imposed on June 21, 2011 by
    Justice R.M. Thompson of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the appellants that in the unusual circumstances, this is
    not a case for deference given that the entire emphasis at trial was on the
    aggravated assault conviction which has now been set aside.

[2]

We see no benefit to returning these appellants to custody given the 5
    years that has elapsed since the offence, the time spent on bail pending appeal
    and the 9 days each has spent in custody.

[3]

We are also satisfied that notwithstanding the seriousness of this common
    assault, imposing a discharge would not be contrary to the public interest.
    There were no serious injuries to the victim who did not file a victim impact
    statement.  The appellants were young and at the time both were first
    offenders.

[4]

We are also satisfied that the public interest can be served and the
    seriousness of offence reflected in a lengthy term of probation with community
    service.

[5]

A discharge is in the appellants interest given their prior good
    character and the possible impact of a conviction on their prospective careers
    and in Mr. Greens ability to travel to be with his family.

[6]

Accordingly, leave to appeal is granted. The appeals are allowed, the
    sentence is set aside and each appellant is granted a conditional discharge
    with probation for 2 years on the terms imposed by the trial judge with the
    additional condition that the appellants each complete 200 hours of community
    service.


