DATE: 20050209

DOCKET: C42181

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – KATHLEEN BRAGNALO (Respondent)

BEFORE:

ROSENBERG, SIMMONS and LANG JJ.A.

COUNSEL:

Grace Choi

for the appellant

Michael Dineen

for the respondent

HEARD & ENDORSED:

February 7, 2005

On appeal from sentence imposed by Justice F. A. Sargent of the Ontario Court of Justice dated June 29, 2004.

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

[1] The trial judge erred in law in imposing a discharge for the offence of dangerous driving causing death. A discharge is not available for that offence. We are also of the view in light of the disposition concerning that offence and the circumstances giving rise to all the offences, that a conditional discharge should not have been imposed for the offences of dangerous driving causing bodily harm, which arose out of the identical fact situation.

[2] The Crown is no longer pursuing the appeal from failure to impose a driving prohibition. There is a conflict in the fresh evidence as to the positions taken before trial about the driving prohibition. At the very least, it is apparent that the respondent believed the Crown would not seek such a prohibition and at trial the Crown did not do so. In those circumstances, we think the Crown has properly taken the position that it would not pursue the driving prohibition appeal. We thank Crown counsel for advising us of the position of Jennifer Domansky’s family. We have all read the victim impact statements, which disclose the devastating effect these offences have had on the family.

[3] Accordingly, leave to appeal sentence is granted. The appeal is allowed, the conditional discharges are set aside and suspended sentences and probation substituted. The probation will be on the same terms as imposed by the trial judge but also including the three additional terms attached to this endorsement.