DATE: 20040901

DOCKET: C40029

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) – and – DARIN BAKER (Respondent)

BEFORE: WEILER, SHARPE and SIMMONS JJ.A.

COUNSEL: Lorna Bolton for the appellant Stephen Menzles for the respondent

HEARD: July 16, 2004

RELEASED ORALLY: July 16, 2004

On appeal from the sentence imposed by Justice Andre L. Guay of the Ontario Court of Justice dated April 22, 2003.

E N D O R S E M E N T

[1] This is a Crown appeal. Mr. Baker pled guilty to one count of dangerous driving causing bodily harm and one count of flight from police causing bodily harm. The facts read in to support the guilty plea indicated that the appellant had been drinking but the appellant did not admit that he was impaired by alcohol. The Crown did not ask for a hearing to prove impairment beyond a reasonable doubt. Thus, impairment was not a factor in the conditional sentence of 15 months imposed by the trial judge. The material filed before the court on the sentencing hearing made it clear that if Mr. Baker went to jail his job would not be kept open for him. He was the sole support of his family.

[1] The Crown filed a notice of appeal promptly after the sentencing hearing but did not perfect the appeal for one year. Thus, the appellant has served almost the entire portion of his conditional sentence and he is six days away from completion of his sentence. He has completed all of his community service save for sixteen hours due to administrative reasons and is scheduled to complete them this weekend. As a condition of bail, Mr. Baker was prohibited from driving for 90 days. A term of his conditional sentence was that he not drive.

[2] The Crown appeals the sentence and raises three grounds of appeal. The first ground of appeal is that the trial judge was under the misapprehension that Mr. Baker would receive a very serious penalty for this offence under the Highway Traffic Act. He rejected the Crown’s request for a longer, stand-alone prohibition because the court was of the view Mr. Baker would also be subject to “three or four…four or five years” driving prohibition under that Act. In fact, pursuant to s. 41(1) of the Act, Mr. Baker’s driving licence would have been suspended for one year. The appellant submits that a driving prohibition in the range of four to five years is the correct sanction for these offences and this offender: R. v. Dhesi, [2001] O.J. No. 1343 (C.A.); R. v. Dharamdeo, 2000 ONCA 17018, [2000] O.J. No. 4546 (C.A.); R. v. Collins, [1995] A.J. No. 912 (C.A.).

[3] The Crown further submits that this misapprehension of the law relating to the driving prohibition is an error in principle that affected the trial judge’s decision to impose a conditional sentence entitling us to impose a more appropriate custodial sentence. In addition, the Crown submits that the trial judge erred in principle in minimizing the seriousness of Mr. Baker’s flight from police and erred in principle in giving insufficient weight to general deterrence and denunciation.

[4] Further, the Crown submits Mr. Baker’s flight from police ought to attract a consecutive sentence. In R. v. Sturge, [2001] O.J. No. 3923 this court stated, “We are satisfied that the sentence imposed on the dangerous driving charge should have been consecutive to the sentences imposed on the robbery charges.” Thus, Sturge does not require the imposition of a consecutive sentence but a separate sentence would not be inappropriate given the different elements of both offences.

[5] The factum filed by the Crown on appeal sought a more serious penalty on the basis of alcohol impairment. The responding factum pointed out that the Crown was not entitled to make this submission. In oral argument before us the Crown advanced the position that lack of intoxication underscored the intentional and deliberate nature of this offence. That position was not in the Crown’s factum. Nor was the Crown’s point, that the trial judge’s imposition of a conditional sentence was impacted by his misapprehension of the length of the driving prohibition under the Highway Traffic Act, made clear in its factum. The Crown did not seek leave to file a fresh factum.

[6] Having heard the submissions of counsel and considered them we are of the opinion that, while this offence certainly could have attracted a custodial sentence, in view of the delay by the Crown in perfecting its appeal, the shift in the Crown’s argument without notice to the defence, and the high degree of deference to be afforded to the trial judge, we would not interfere except in one respect. We would impose a driving prohibition to match the trial judge’s intended disposition.

[7] Accordingly, we would impose separate sentences for the offences. We would maintain the conditional sentence of 15 months for the dangerous driving offence. We would set aside the conditional sentence for the flight offence and impose a driving prohibition of an additional two years from today’s date pursuant to s. 259 (2).

“Karen M. Weiler J.A.”

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”