Defence appeal from a $100 fine imposed in relation to a charge of possession of a prohibited weapon (a baton). Sympathetic circumstances. Defence had requested an absolute discharge. Accused did not have a criminal record at the time of the offence, however, prior to the sentencing he had pleaded guilty to a breach charge and received an absolute discharge.

Held: Appeal allowed. Absolute discharge granted.

The sentencing judge erred in noting that the accused had already received a discharge, given that he had no record at the time that the offence was committed. Facts of the case fit into the MacFarlane criteria, and an absolute discharge was not contrary to the public interest.

R. Ziv – Defence Counsel