R. v. Bankay, 2010 ONCA 799

Court File and Parties

Citation: R. v. Bankay, 2010 ONCA 799 Date: 2010-11-26 Docket: C52385

Court of Appeal for Ontario Before: Winkler C.J.O., Sharpe and Karakatsanis JJ.A.

Between: Her Majesty the Queen (Applicant/Appellant) and Jacqueline Bankay (Respondent)

Counsel: Holly Loubert, for the appellant Lawrence Ben-Eliezer, for the respondent

Heard & released orally: November 24, 2010 On appeal from the judgment of Justice June Maresca of the Ontario Court of Justice dated June 16, 2010.

Endorsement

1This is a Crown appeal relating to sentence. The respondent pleaded guilty to aggravated assault. She had a history of conflict with the victim and bit off part of the victim’s finger during a fight on school grounds.

2We agree with the appellant that the trial judge erred by imposing what amounted to a disguised conditional sentence. After indicating that she intended to impose a conditional sentence, the trial judge was informed by counsel that a conditional sentence was excluded as this was a serious personal injury offence. The trial judge then made a probation order with a term that imposed to 6 months of house arrest. It was an error of law to impose a sentence that circumvented Parliament’s decision to exclude conditional sentences for this offence

3A custodial term was required in the circumstances. In arriving at an appropriate sentence, we must take into account that we are dealing with a youthful first offender who has served 5 months and one week of house arrest. In the circumstances, we impose a sentence of 21 days custody to be served intermittently to allow her to continue with her studies. We maintain the other terms of probation order imposed by the trial judge.

4Leave to appeal sentence is granted and the sentence is varied accordingly.