DATE: Draft April 29, 2004

DOCKET: C40310

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– CYNTHIA LeMAY (Appellant)

BEFORE: CRONK, ARMSTRONG and LANG JJ.A.

COUNSEL: Cynthia LeMay the appellant in person

Lou Strezos Duty counsel for the appellant

Nadia Thomas for the respondent

HEARD: April 26, 2004

RELEASED ORALLY: April 26, 2004

On appeal from the sentence imposed by Justice William R. Wolski of the Ontario Court of Justice on July 2, 2003.

E N D O R S E M E N T

[1] The appellant was convicted of various driving related offences and breach of probation. She was sentenced to a total of 23 months in jail, after credit for 104 days of pre‑trial custody, to be followed by 2 years probation. She was also ordered to make restitution in the sum of $7,781.29. She appeals her sentence and the restitution order.

[2] The appellant argues that the custodial part of her sentence was unduly harsh. We disagree.

[3] The appellant has a horrendous record for drinking and driving offences and a history of breaching probation orders. She has more than 10 prior convictions for drinking and driving offences and was twice ordered not to operate a motor vehicle for the remainder of her life. The offences in this case were committed by the appellant shortly after she was released from jail following a conviction for impaired driving, amongst convictions for other offences.

[4] The evidence concerning the nature of the appellant’s driving on this occasion, her consequent endangerment of others, and her record for drinking and driving offences amply support the custodial sentence. If anything, in our view, the 23 months custodial part of her sentence was lenient in the circumstances; however, there is no Crown cross-appeal in this case.

[5] The appellant also argues that the restitution order was improper in the circumstances because the trial judge did not take into account her ability to make restitution. The ability to pay is a relevant, although not a controlling, factor to be considered before imposing a restitution order. In this case, no consideration was given by the trial judge to the appellant’s ability to pay; nor is the basis for the restitution order clear on the record before us.

[6] Accordingly, leave to appeal sentence is granted and the sentence appeal is allowed, in part, by deleting the restitution order. All other aspects of the sentence remain in place.

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”

“S. E. Lang J.A.”