DATE: 20060602

DOCKET: C41893

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – FRANK BRISSON (Appellant)

BEFORE:

WEILER, GOUDGE and ROULEAU JJ.A.

COUNSEL:

Jennifer A.Y. Trehearne

for the appellant

James V. Palangio

for the respondent

HEARD & RELEASED ORALLY:

May 30, 2006

On appeal from the conviction on October 7, 2003 and the sentence imposed on December 17, 2003 by Justice Robert N. Weekes of the Superior Court of Justice.

E N D O R S E M E N T

[1] The appellant appeals his sentence of two years less a day plus three years probation and a driving prohibition of 12 years for his convictions of criminal negligence causing death, impaired driving causing death, and operating a vehicle with over .80 milligrams of alcohol in his blood. The appeal from conviction was abandoned.

[2] The appellant submits that the sentencing judge failed to give serious consideration to the appropriateness of a conditional sentence because his reasons do not indicate that he considered and rejected the imposition of specific conditions. In addition the appellant appeals the length of the driving prohibition imposed.

[3] The sentencing judge did not fail to give “serious consideration” to the conditional sentence. In considering whether a conditional sentence would work the judge will inevitably consider the variety of conditions that could be attached. The consideration of whether or not to impose a conditional sentence is not undertaken in a vacuum. A trial judge cannot do one without the other.

[4] In this case, the trial judge simply did not record the fact that he considered the imposition of conditions. The fact that the reasons are silent in this regard is not a basis for concluding that the sentencing judge committed an error in law. Even assuming that the conditions in R. v. Boyd, [1998] O.J. No. 605 and R. v. Doust, [2001] O.J. No. 4389 could have been imposed here, the trial judge was of the opinion that the need for general deterrence warranted incarceration. He was entitled to come to this conclusion. See R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 at para 107. The appellant’s disagreement with the exercise of the trial judge’s opinion that incarceration was the best way to achieve general deterrence is not a proper basis on which this court should intervene. Proulx, supra, at para 131. The trial judge did not err in principle in imposing a sentence of incarceration of two years less a day.

[5] With respect to the length of the driving prohibition, we are of the opinion that deference is owed to the trial judge’s decision and that it was part of the overall sentence imposed. Further, the driving prohibition is subject to variation by the Parole Board.

[6] Accordingly, leave to appeal sentence is granted. The appeal as to sentence is dismissed.

“Karen M. Weiler J.A.”

“S.T. Goudge J.A.”

“Paul Rouleau J.A.”