The respondent pled guilty to encouraging, aiding or assisting the fighting of animals contrary to section 446(1)(d) of the Criminal Code. Counsel made a joint submission on sentence for a fine and a probation order, with a condition that the respondent not possess animals for the purpose of fighting.
The sentencing judge ordered a pre-sentencing report and questioned the Humane Society as to the proposed condition. He ultimately rejected the joint submission and sentenced the respondent to imprisonment for 30 days to be served intermittently, probation for 2 years, 100 hours of community service and an order prohibiting the respondent from owning or having custody or control of any dog for a period of 2 years.
The respondent appealed the sentence only. The summary conviction appeal court judge refused to deal with the fitness of the sentence, having found that the sentencing judge had erred in principle by calling the Humane Society witness. The judge allowed defence to amend the notice of appeal to appeal the conviction, made the amendment and ordered a new trial.
Crown appeals that order to this court. The court notes that the respondent had been represented by counsel at the trial, had acknowledged that the elements of the offence had been made out and admitted responsibility for the offence. After plea and review and of the facts, a finding of guilt was entered. The court is not bound by a joint submission. The court finds that the summary conviction appeal court judge was in error. When an appeal is taken from sentence alone, an appeal court must either vary the sentence or dismiss the appeal. There is no jurisdiction to order a new trial. The plea was never withdrawn and there was no proper basis for a withdrawal.
The appeal is allowed, the order of the summary conviction appeal court is set aside, the conviction is restored and the matter is remitted to that court for review of the sentence.
Source: Case Law