2014 NBCA 13, 2014 NBCA 13

COURT OF APPEAL OF NEW BRUNSWICK 60-13-CA P.S. APPELLANT P.S. APPELANTE - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE P.S. v. R., 2014 NBCA 13 P.S. c.

R., 2014 NBCA 13 CORAM: The Honourable Justice Robertson The Honourable Justice Richard The Honourable Justice Green CORAM : l'honorable juge Robertson l'honorable juge Richard l'honorable juge Green Appeal from a decision of the Provincial Court (Youth Justice Court): April 29, 2013 (sentence) Appel d'une décision de la Cour provinciale (Tribunal pour adolescents) : le 29 avril 2013 (prononcé de la peine) History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: January 23, 2014 Appel entendu : le 23 janvier 2014 Judgment rendered: January 23, 2014 Jugement rendu : le 23 janvier 2014

Counsel at hearing: P.S. appeared in person For the respondent: Kathryn Gregory Avocats à l'audience : P.S. a comparu en personne Pour l’intimée : Kathryn Gregory THE COURT The application for leave to appeal and the appeal are allowed. With one exception, the sentence is varied to one of probation for the same duration and on the same terms as the probation order issued in the Provincial Court. The condition that P.S. make restitution is removed from the probation order and a stand-alone order of restitution is issued.

The judgment of the Court was delivered by THE COURT (Orally) [ 1 ] In the aftermath of a conviction following a trial on charges of assault with a weapon and mischief ( ss. 267 (

a) and 430(4) (

a) of the Criminal Code , R.S.C. 1985, c. C-46), P.S. was sentenced to a term of probation of 24 months with various conditions, including one that she make restitution of $2,500. She seeks leave to appeal the sentence on the ground she may not financially be able to make restitution. Although the Attorney General argues restitution should have featured as part of the sentence, he concedes it should not have been included as a condition of probation. The Attorney General submits a restitution order should rather have been issued as a stand-alone order.

That way, if P.S. were unable to make restitution within the term of her probation, she would not be violating the probation order. At the same time, this would enable the victim to have recourse to s. 741(1) of the Criminal Code to enforce the order by entering it as a judgment. [ 2 ] Given the Attorney General’s position, we grant P.S. leave to appeal and allow her appeal. We vary the sentence to one of probation for the same duration and on the same conditions as the order made in the Provincial Court with the exception of the condition ordering P.S. to make restitution.

In addition, under s. 738(1)( a ), we order P.S. to make restitution of $2,500 to Jessica McKeown. ______________________________ J.T. ROBERTSON, J.A.

______________________________ J.C. MARC RICHARD, J.A. ____________________________ BRADLEY V. GREEN, J.A