DATE: 20040401

DOCKET: C40297

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) – and – STEPHANIE BLANCHE WILSON (Respondent)

BEFORE: GOUDGE, MACPHERSON and CRONK JJ.A.

COUNSEL: Philip Perlmutter for the appellant

Leslie Maunder for the respondent

HEARD: March 29, 2004

On appeal from the conditional sentence imposed by Justice John Desotti of the Superior Court of Justice dated June 9, 2003.

E N D O R S E M E N T

[1] The crown appeals the sentence on two grounds: (1) the trial judge’s comments to the Crown during the sentence hearing displayed a lack of impartiality which constituted, or at least bordered on, bias; and (2) a conditional sentence for this offence and this offender was an unfit sentence.

[2] Several of the trial judge’s comments to the Crown during the sentence hearing were inappropriate. Crown counsel tried to make an entirely proper submission about sentence. The trial judge almost made this impossible with repeated ill-conceived remarks about the cases being relied on by the Crown. Civility in the courtroom must always be vigilantly guarded.

[1] Moreover, the trial judge’s substantive comments about the Crown’s cases were misplaced – many of the cases were in fact relevant to some of the factors that the trial judge needed to consider in imposing sentence. Put succinctly, the trial judge should have listened to the Crown’s submissions, not launched into several entirely inappropriate harangues.

[2] Having said that, the interventions do not indicate that the trial judge prejudged the matter of sentence. He conveyed to counsel, as he was entitled to do, his view that a conditional sentence was a sentence that needed to be addressed.

[3] The Crown also argues that a conditional sentence is inappropriate in this case given that: (1) the respondent fled the scene and did not seek assistance for the victim, or contact the authorities for several hours; (2) the respondent consumed a significant amount of alcohol; and (3) the respondent had been warned in the past not to drive after drinking. In those circumstances, the Crown asserts that a conditional sentence is not in the interests of justice. It does not challenge the twelve-month term of the conditional sentence imposed by the trial judge.

[4] The respondent has filed fresh evidence on this appeal, without objection from the Crown, that establishes that the respondent has complied with the terms and conditions of her conditional sentence, she has not had a drink since the date of this incident, and she has taken all rehabilitation courses recommended to her. More significantly, she has now completed almost ten months of the twelve-month conditional sentence imposed by the trial judge.

[5] There is no doubt that this case had unfortunate and tragic consequences and that the offence is most serious. However, in our view, a one-year conditional sentence, with the punitive terms imposed by the trial judge, was within the appropriate range having regard to the circumstances of this offence and this offender. In addition, having regard to the fresh evidence filed with this court, it would not be in the interests of justice to incarcerate the respondent at this time. Had a custodial sentence been imposed from the outset, as the Crown argues should have been the case, the respondent would already be on some form of release.

[6] Accordingly, to incarcerate the respondent now would not serve either the public interest or the interests of the respondent.

[7] For the reasons given, leave to appeal sentence is granted and the sentence appeal is dismissed.

“S.T. Goudge J.A.”

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”