



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fiddes, 2019 ONCA 27

DATE: 20190116

DOCKET: C65300

Simmons, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Fiddes

Appellant

Andrew Fiddes, in person

Hannah Freeman, for the respondent

Heard: January 14, 2019

On appeal from the conviction entered on November 17,
    2017, and the sentence imposed on March 21, 2018, by Justice K.L. Lische of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

At the conclusion of the hearing of this appeal, for reasons to follow,
    we dismissed the conviction appeal but allowed the sentence appeal. These are
    our reasons.

[2]

The appellant was convicted of eight offences following his arrest for
    the January 26, 2017 break and enter of a Sudbury pharmacy: break, enter and
    theft; possession of stolen property valued at over $5,000 (2776 Lorazepam
    pills valued at $13,880); possession of break-in instruments (bolt cutters);
    three counts of possession of ammunition while prohibited; and two counts of
    unlawful possession of a Schedule 1 substance (Buprenorphine and
    Methadone).

[3]

The appellant was sentenced to three years' imprisonment less 455 days
    credit for pre-sentence custody on the breaking and entering charge (count 1),
    leaving a remaining sentence of imprisonment of 640 days; and to concurrent
    sentences ranging from three months' imprisonment to one-year imprisonment on
    the other counts.

[4]

The trial judge found that a police officer who viewed surveillance
    videos and still photographs of the pharmacy and the building in which it was
    located had subjective and objectively reasonable grounds to believe that the
    appellant was the perpetrator of the break-in at the pharmacy. She therefore
    dismissed the appellant's application under ss. 8, 9 and 24 of the
Charter
.

[5]

Relying on the officer's evidence, the surveillance evidence, the
    evidence of a building superintendent, a pharmacy employee and various police
    officers involved in the appellant's arrest and the execution of a search
    warrant, the trial judge found the appellant guilty of the offences with which
    he was charged.

[6]

On appeal, the appellant argued that he entered through an open door and
    that rather than being convicted of break, enter and theft, he should have been
    found guilty of unlawful entry and theft. He noted that the drugs he stole were
    relatively benign and that he did not break anything while in the pharmacy. He also
    submitted that he was not identified at the scene of the crime.

[7]

We did not accept these submissions. The appellant did not testify at
    trial. The evidence before the trial judge supported a finding of break, enter
    and theft and confirmed the appellant's identity as the perpetrator of the
    break-in. The findings of guilt on the other offences were supported by evidence
    of items found in the appellant's possession. We therefore dismissed the
    appellant's conviction appeal.

[8]

Concerning sentence, we accepted the appellant's submission that, in the
    particular circumstances of this case, the trial judge erred by failing to
    consider, as a mitigating factor on sentence, the serious injuries the
    appellant suffered as a result of being beaten while in pre-sentence custody.
    Although the trial judge noted that the appellant had been injured while in
    custody, she did not enumerate his injuries (four broken ribs, two punctured
    lungs, a brain injury); nor allude to their serious nature (life threatening).
    These injuries had a significant impact on the appellant and warranted serious
    consideration on sentencing. Given their passing mention in her reasons, we are
    unable to accept the Crown's submission that it is implicit in the trial
    judges reasons that she gave the fact of the injuries any mitigating effect.

[9]

In the circumstances, we allowed the sentence appeal and reduced the remaining
    sentence imposed on count 1 to 300 days and the sentence imposed on count 2 to
    300 days, concurrent to the sentence on count 1, such that the appellant's
    sentence was fully served. We also set aside the mandatory victim fine
    surcharge the trial judge had imposed:
R. v. Boudreault
, 2018 SCC 58.
    The remaining terms of the original sentence remain in full force and effect.

Janet
    Simmons J.A.

P.
    Lauwers J.A.

G.T.
    Trotter J.A.


