DATE: 20041124

DOCKET: C41320

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) v. KIMBERLY ELLIOTT (Respondent)

BEFORE:

DOHERTY, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Alexander Hrybinsky

for the appellant

David M. Humphrey

for the respondent

HEARD & ENDORSED:

November 19, 2004

On appeal from sentence imposed by Justice C. Misener of the Superior Court of Justice dated January 9, 2004.

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

[1] While it may well have been inappropriate to impose a conditional sentence at the time the sentence was imposed, we are satisfied that it would not be in the interests of justice to incarcerate the respondent at this time. She has completed 11 months of the conditional sentences and there is no suggestion she has not complied with the stringent terms of the conditional sentence. She has also completed half of the community service hours required by the sentence.

[2] The respondent is also pregnant and is due in March 2005. It would obviously impose a significant hardship on the family unit if the respondent were to be incarcerated over the next several months.

[3] Leave to appeal is granted. The appeal is dismissed.