DATE: 20010312

DOCKET: C32984

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) –and– SARBJIT HAYRE (Respondent)

BEFORE: CATZMAN, WEILER and ROSENBERG JJ.A.

COUNSEL: Christopher Webb, for the appellant Gregory LaFontaine, for the respondent

HEARD: March 9, 2001

On appeal from the sentences imposed by Justice John F. Hamilton, sitting without a jury, dated September 23, 1999.

E N D O R S E M E N T

[1] In our view, it was open to the trial judge to depart from the joint submission when he struck the plea to one of the offences for which the joint submission applied. Nevertheless, a conditional sentence was inappropriate in this case given the seriousness of the conduct and the absence of any special circumstances that would indicate that restorative objectives should be given paramount consideration.

[2] We are also of the view that the trial judge erred in principle in several respects with respect to the charge of impaired driving causing bodily harm. The trial judge misapprehended the seriousness of the conduct and of the injuries sustained by the several victims. He also misapprehended the range of sentence for the more serious offence of impaired driving causing death. All of this lead him to impose a jail sentence of 60 days imprisonment, which was outside the proper range.

[3] With respect to the sentence for extortion, notwithstanding that a sentence of imprisonment should have been imposed, we are not prepared to interfere at this time. The respondent has served all but a few weeks of the conditional sentence. Because of the nature of his employment and the driving prohibition, the respondent has been virtually under house arrest except for purposes of employment during the period of the conditional sentence.

[4] As to the sentence for impaired driving causing bodily harm, that sentence is so manifestly inadequate that we are the view that an additional period of incarceration is required. At the time of the offence, the respondent was on bail for two different sets of offences including “over 80”. The driving that preceded that collision was very bad. Were it not for the fact that the respondent has already served the 60 days sentence and appears to have his alcohol problem under control we would have imposed a much longer sentence. In the circumstances, we are of the view that the respondent should serve a further three months imprisonment.

[5] Accordingly, leave to appeal sentence is granted, the sentence of 60 days imprisonment for impaired driving causing bodily harm is set aside and the sentence increased to five months. The respondent will, of course, have credit for the 60 days already served. The driving prohibition will stand. The appeal from sentence for extortion is dismissed. If necessary a warrant may issue for the arrest of the respondent.

Signed: “M.A. Catzman J.A.” “K.M. Weiler J.A.” “M. Rosenberg J.A.”