R. v. Poonai, 2009 ONCA 428
COURT OF APPEAL FOR ONTARIO
Laskin, Feldman and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Pretam Poonai
Appellant
Gregory Lafontaine, for the appellant
Robert Gattrell, for the respondent
Heard: May 21, 2009
On appeal from the conviction entered on January 17, 2007, and the sentence imposed on July 13, 2007, by Justice Minoo F. Khoorshed of the Ontario Court of Justice, sitting without a jury.
APPEAL BOOK ENDORSEMENT
1In our view, the trial judge was entitled to find that the first breath sample was taken within two hours, thus entitling the Crown to the statutory presumption.
2Accordingly, the appeal against conviction is dismissed.
3The trial judge imposed a penitentiary term plus three years probation, a combination that is illegal. Therefore, the sentence cannot stand. Both the Crown and the trial judge were of the view that probation was important, and we accept their view.
4Accordingly, we vary the sentence to a reformatory term of two years less a day and three years probation on the terms outlined by the trial judge. We are not persuaded that the lifetime driving prohibition is unfit.
5Accordingly, leave to appeal sentence is granted and the sentence is varied as outlined above.