DATE: 20040401

DOCKET: C41444

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ALLAN GARDNER (Appellant)

BEFORE:

MacPHERSON and SHARPE JJ.A. and LANG J. (ad hoc)

COUNSEL:

Kimberly Gribble

for the appellant

Jennifer Woollcombe

for the respondent

HEARD & ENDORSED:

March 31, 2004

On appeal from the sentence imposed by Justice A. Ross Webster of the Ontario Court of Justice dated February 17, 2004.

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

[1] There was a miscommunication in this case between the two counsel and the trial judge. Counsel intended to make a joint submission of a sentence of six months less time served.

[2] The trial judge explicitly stated that he was “prepared to accept the joint submission based on the fact that you have spent 172 days in pre‑trial custody”. However, he then imposed an additional sentence of six months.

[3] The Crown concedes that in light of these circumstances the appeal should be allowed, the sentence should be set aside, and a sentence of time served should be imposed.