COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – ALLAN GARDNER (Appellant)
BEFORE:
MacPHERSON and SHARPE JJ.A. and LANG J. (ad hoc)
COUNSEL:
Kimberly Gribble
for the appellant
Jennifer Woollcombe
for the respondent
HEARD & ENDORSED:
March 31, 2004
On appeal from the sentence imposed by Justice A. Ross Webster of the Ontario Court of Justice dated February 17, 2004.
A P P E A L B O O K E N D O R S E M E N T
1There was a miscommunication in this case between the two counsel and the trial judge. Counsel intended to make a joint submission of a sentence of six months less time served.
2The trial judge explicitly stated that he was “prepared to accept the joint submission based on the fact that you have spent 172 days in pre‑trial custody”. However, he then imposed an additional sentence of six months.
3The Crown concedes that in light of these circumstances the appeal should be allowed, the sentence should be set aside, and a sentence of time served should be imposed.