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Criminal - Sentencing - Probation. R. v. Williams
In R. v. Williams (Ont CA, 2025) the Ontario Court of Appeal allowed a sentence appeal, here where the defendant "received a global sentence of 4 years to be followed by 2 years’ probation":[1] This is a sentence appeal. The appellant was convicted of drug-related crimes. He received a global sentence of 4 years to be followed by 2 years’ probation. The parties returned before the trial judge to bring to his attention that s. 731(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, prohibits the imposition of a probation order when the total sentence of imprisonment is greater than 2 years. The sentencing judge concluded he was functus officio and, therefore, could not correct the mistake. We need not address whether he was functus. We agree that the probation order must be vacated.
[2] In addition, the parties agree, as do we, that the reasons for sentence make clear that the trial judge’s intention was to impose a net sentence of 3 years after applying a credit of 1 year for pre-sentence custody and credit pursuant to R. v. Downes, 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321.
[3] Leave to appeal sentence is granted, and the sentence appeal is allowed, only to the extent of: (i) vacating the probation order; and (ii) setting aside the 4-year sentence imposed on count 8 and substituting in its place a sentence of 3 years. . R. v. Johnston
In R. v. Johnston (Ont CA, 2023) the Court of Appeal considers a probation order:[12] In the result, leave to appeal is granted, the appeal is allowed, and the conditional sentence is set aside. We would substitute a sentence of 16 months in prison. In the circumstances, we would stay the operation of that custodial sentence and direct that no warrant of arrest or committal issue. Notwithstanding that conclusion, the probation order remains. Given that we are imposing a sentence not exceeding two years, a probation order is still available. On that point, we note that it is the custodial term imposed at the time of sentence that determines whether a probation order can be imposed: R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723, at para. 19.
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