



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barkhouse, 2017 ONCA 29

DATE: 20170116

DOCKET: C62712

Feldman, Rouleau and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robin Barkhouse

Appellant

Robin Barkhouse, acting in person

Dan Stein, duty counsel

Geoffrey Roy, for the respondent

Heard and released orally: January 10, 2017

On appeal from the sentence imposed on August 26, 2014 by
    Justice Stephen D. Brown of the Ontario Court of Justice.

ENDORSEMENT

[1]

This is a sentence appeal. The appellant, an
    addict-trafficker, was sentenced to 15 months imprisonment plus two years
    probation for the possession of 28 g. of cocaine for the purpose of
    trafficking. He pled guilty and was admitted into the Halton Drug Treatment
    Court program. He was expelled from the program after testing positive for
    cocaine on three occasions, on the last occasion concocting a significant lie
    about the circumstances of his relapse.

[2]

There are three grounds of appeal. It is
    necessary to address only the first ground that was argued, as in our view
    there was an error that had a material effect on the appellants sentence.

[3]

We agree with duty counsel that the sentencing
    judge erred in principle in treating as an aggravating factor the circumstances
    that led to his ejection from the Drug Treatment Court program, and in
    particular that he lied to the court and those involved in the program. While
    his successful completion of the program, or even as the sentencing judge
    noted, his efforts to comply with the program, might have worked in mitigation
    of his sentence, he ought not to have been sentenced more severely because he
    did not fully engage in and in fact lied in the course of the program. The
    trial judge specifically identified this as a factor in aggravation, and said
    the appellant was going to have to pay the price.

[4]

Having identified a material error, we turn to
    the question of a fit sentence.

[5]

We have considered all of the relevant
    circumstances. These include the quantity and nature of the drug, the
    appellants guilty plea, his age, his status as a first offender, his
    addiction, the lack of commercial motive, his history of employment, his strong
    family and community support, his engagement in rehabilitation efforts while
    incarcerated, and evidence of a specific treatment plan for his addiction once
    released. In our view, considering all of the circumstances, a fit sentence is
    nine months.

[6]

We therefore allow the appeal, and substitute
    for the sentence of 15 months a sentence of nine months imprisonment. We do
    not interfere with the other terms of the sentence imposed by the sentencing
    judge, including the order for two years probation and the s. 109 order.

K.
    Feldman J.A.

Paul
    Rouleau J.A.

K. van Rensburg J.A.


