R. v. Ryazanov, 2008 ONCA 667 was released today from the Court of Appeal.
The case has two interesting points.
First, a Crown undertaking not to appeal is not binding on the A.G.
Second, a conditional sentence should, in general, be house arrest and should be a uniform house arrest throughout its term.
See below:
[40] The respondents contend that the Crown undertaking should act as an absolute bar to this appeal and that this court should refuse to grant leave. It is argued that to permit the Crown’s repudiation from the express assurance that the sentences would not be appealed would amount to an abuse of process in violation of s. 7 of the Canadian Charter of Rights and Freedoms and would undermine the integrity of the judicial pre-trial and resolution process.
[41] The appellant acknowledges that this appeal was advanced notwithstanding that, prior to sentencing, the Crown Attorney’s office undertook that no appeal would be pursued. The appellant submits, however, that the undertaking does not preclude the Attorney General from appealing.
[42] In my view, the sentence appeal is within the Attorney General’s statutory power. The Crown Attorney’s office cannot divest the Attorney General of this power, for the following reasons:
(i) The power of the Attorney General to appeal is statutory in nature;
(ii) Case law establishes that Crown counsel cannot divest the Attorney General of this statutory power of appeal; and
(iii) The respondents failed to establish that granting leave to appeal would amount to an abuse of process in violation of s. 7 of the Charter.
…
[75] Conditional sentences should be punitive. As the Supreme Court of Canada stated in R. v. Proulx, at para. 117: “[P]unitive conditions such as house arrest should be the norm, not the exception.” In my view, that comment applies throughout the duration of a conditional sentence. Therefore, the house arrest conditions should be extended to the full term of the respondents’ conditional sentences.
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