DATE: 20040520

DOCKET: C41660

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GARNET PRINCE (Applicant/Appellant)

BEFORE:

MacPHERSON, CRONK and GILLESE JJ.A.

COUNSEL:

Melvyn Green

for the applicant/appellant

Geoffrey Roy

for the respondent

HEARD AND ENDORSED:

May 18, 2004

On appeal from the sentence imposed by Justice L.T. Montgomery on February 9, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] The trial judge’s reasons reflect no analysis or basis for his conclusion that the acceptance of the joint submission of the parties concerning sentence would bring the administration of justice into disrepute. The Crown concedes that the proposed sentence of 90 days intermittent incarceration is within the proper range. The test for the rejection of a joint submission is a very high one: R. v. Cerasuolo (2001), 151 C.C.C. (3d) 445 (C.A.) and R. v. Bosklopper, [1995] O.J. No. 4125 (C.A.). That test was not met here.

[2] Accordingly, leave to appeal sentence is granted and the sentence appeal is allowed. As the appellant has already served more than the ninety days proposed under the joint submission, the sentence is varied to time served.