DATE: 20040206

DOCKET: C37875

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – FARAMARZ VAZIRI (Appellant)

BEFORE:

DOHERTY, LASKIN and ROSENBERG JJ.A.

COUNSEL:

Mara Greene for the appellant

Susan Magotiaux for the respondent

HEARD:

January 22, 2004

RELEASED ORALLY:

January 22, 2004

On appeal from the conviction and sentence imposed by Justice Ian V.B. Nordheimer of the Superior Court of Justice dated January 10, 2002.

E N D O R S E M E N T

[1] The appellant was convicted of dangerous driving causing death and dangerous driving causing bodily harm. The charges arose out of a car accident which occurred on a city street in Toronto. The appellant was driving at an excessive speed on a wet road and lost control of his vehicle. The appellant appeals his conviction and the sentence of two years less a day imposed by the trial judge.

[2] The appellant advances two grounds of appeal on the conviction appeal. He contends that the trial judge erred in holding that the appellant’s right under s. 11(b) of the Charter had not been infringed. The appellant also argues that the trial erred in his interpretation of s. 577 of the Criminal Code and should have found that the Attorney General had no power to consent to the preferring of the indictment. The appellant had been committed for trial but, that committal had been quashed by a judge of the Superior Court. The Attorney General then preferred an indictment under s. 577(a).

[3] The trial judge addressed the two arguments advanced on appeal in careful and detailed reasons. We agree with those reasons and do not propose to add anything to his analysis of the s. 11(b) claim. For the reasons set out by the trial judge we reject that claim.

[4] With respect to the interpretation of s. 577(a) of the Criminal Code as it read at the time of the trial, like the trial judge, we agree with the interpretation of that section found in R. v. Charlie (1998), 1998 4145 (BC CA), 126 C.C.C. (3d) 513 (B.C. C.A.) and R. v. Ewen (2000), 2000 SKCA 36, 144 C.C.C. (3d) 277 (Sask. C.A.). In those cases, the courts held that where a committal for trial was quashed, it could not be said that a preliminary inquiry had been held for the purpose of s. 577(a) of the Criminal Code. The Attorney General or his Deputy were, therefore, authorized to consent to the preferment of the indictment.

[5] Section 577 of the Criminal Code limits the power of the prosecutor to prefer an indictment set out in s. 574. We read s. 577 as providing that where there has been no judicial determination that there is a prima facie case against an accused, an indictment can be preferred against the accused only where the Attorney General or the Deputy Attorney General personally consents to the preferment of the indictment. This limitation is intended to give the accused added protection from unwarranted prosecution absent a judicial determination that a trial is justified. The interpretation of s. 577 in R. v. Charlie, supra, is consistent with the purpose of s. 577. We agree with the trial judge that the Attorney General had the authority to prefer this indictment under s. 577(a).

[6] As to sentence, the trial judge erred the principle in holding that a conditional sentence would not be appropriate because he could not be assured that there was a sufficient structure that would ensure obedience to the conditions. In fairness, the trial judge did not have the benefit of this court’s decision in R. v. Nault (2002), 2002 44945 (ON CA), 59 O.R. (3d) 388. We are not convinced that this error did not infect the trial judge’s findings respecting the need for deterrence and denunciation. It therefore falls to this court to determine the appropriate sentence.

[7] We are not persuaded that this is the proper case for a conditional sentence given the serious conduct that led to the offence. In our view, given the appellant’s good character, minimal driving record, the fact that alcohol played no role in the accident and the relatively brief nature of the bad driving, an appropriate sentence would be fifteen months imprisonment.

[8] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence is reduced to fifteen months imprisonment. The driving prohibition as imposed by the trial judge will stand. Given the time the appellant has been on bail pending appeal, we see no need for probation and that part of the sentence will be set aside.

“Doherty J.A.”

“John Laskin J.A.”

“M. Rosenberg J.A.”