



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barry, 2019 ONCA 257

DATE: 20190402

DOCKET: C64920

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kathleen Barry

Appellant

Etai Hilzenrat, for the appellant

Candice Suter, for the respondent

Heard and released orally: March 25, 2019

On appeal from the conviction entered on November 17,
    2017 and the sentence imposed on January 15, 2018 by Justice David P. Cole of
    the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The evidence in this trial was heard over a single day. The defence
    called no evidence and made very brief submissions, focussing on the issues of identity
    and the appellants liability as an aider and abettor.

[2]

Immediately following the trial, the trial judge provided brief oral
    reasons for judgment. He found the appellant guilty of three thefts at Shoppers
    Drug Mart and not guilty of two thefts from No Frills. The trial judge
    sentenced the appellant to a term of imprisonment of six months (two months times
    three), as well as to two years probation, and a victim surcharge in a total
    amount of $600.00.

[3]

The appellant argues that the trial judge gave inadequate reasons to
    support the identification of her as the woman in the surveillance videos, the
    finding that the underlying offences of theft were committed, and the
    conclusion that she was guilty as a party to the offences.

[4]

We reject these arguments.

[5]

While the trial judges reasons were brief, we are satisfied that his
    reasons were responsive to the issues raised by defence counsel in his
    submissions, are reasonably intelligible to the parties, and, in the context of
    the circumstances of the case and the trial record, provide a basis for a
    meaningful appellate review.

[6]

In this case, two witnesses who worked at Shoppers Drug Mart and
    observed the incidents in question identified the appellant and testified to
    the occurrence of the thefts. Additionally, there were surveillance videos. It
    is clear that the trial judge accepted the witnesses evidence. Moreover, the
    trial judge provided reasons why he concluded the appellant was a party to the
    thefts.

[7]

The appellant also seeks leave to appeal sentence, arguing that the
    trial judge erred by failing to impose a conditional sentence solely based on
    the appellants long criminal record, and by failing to consider whether a
    conditional sentence would be consistent with the fundamental principles and
    purposes of sentencing. She seeks leave to file fresh evidence regarding her
    medical condition, consisting of an affidavit of which she is the affiant and
    two unsworn letters from her family doctor, Dr. Chan.

[8]

Because of the Supreme Courts recent decision in
R. v.

Boudreault
,
    2018 SCC 58, 429 D.L.R. (4
th
) 583, we grant leave to appeal sentence
    and strike the requirement that the appellant pay a victim surcharge. However,
    even having regard to the proposed fresh evidence, we are not persuaded that
    there is any basis to otherwise interfere with the sentence that the trial
    judge imposed. There were no significant mitigating factors. Given the
    appellants 67 prior convictions, including 27 for theft and 20 for breaches of
    court orders, the sentence imposed was reasonable. Further, the trial judge
    specifically considered the appellants medical condition and concluded that a
    period of incarceration was nonetheless warranted.

[9]

Accordingly, the appeal of conviction is dismissed. Leave to appeal
    sentence is granted, but the appeal as to sentence is dismissed, except with
    respect to the victim surcharge.

Alexandra Hoy A.C.J.O.

Doherty J.A.

B. Zarnett J.A.


